(HC) Infinity v. Brown, Jr., No. 1:2012cv00873 - Document 6 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the Petition for Failure to Prosecute and Follow a Court Order 1 , 3 ; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case; OBJECTIONS DEADLINE: THIRTY (30) DAYS, signed by Magistrate Judge Sheila K. Oberto on 9/8/12: Matter referred to Judge O'Neill. (Hellings, J)
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(HC) Infinity v. Brown, Jr. Doc. 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 NFN INFINITY, 11 Petitioner, 12 13 14 v. E. G. BROWN, JR., Governor, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:12-cv—00873-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO PROSECUTE AND FOLLOW A COURT ORDER (Docs. 1, 3) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 Petitioner is a state prisoner proceeding pro se with a 19 civil action of an uncertain type. The matter has been referred 20 to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and 21 Local Rules 302 and 304. 22 I. Background 23 Pending before the Court is a document filed by Petitioner 24 on May 29, 2012, which was docketed as a petition for writ of 25 habeas corpus. On June 26, 2012, the Court dismissed the 26 petition with leave to file either an amended petition or a civil 27 rights complaint within thirty (30) days. The order was served 28 1 Dockets.Justia.com 1 on Petitioner on the same date. 2 passed, Petitioner has not filed either an amended petition or a 3 complaint.1 Although over thirty days have 4 II. 5 Local Rule 110 provides that “...failure of counsel or of a Failure to Prosecute and Follow an Order of the Court 6 party to comply with these Rules or with any order of the Court 7 may be grounds for the imposition by the Court of any and all 8 sanctions... within the inherent power of the Court.” 9 courts have the inherent power to control their dockets and “in District 10 the exercise of that power, they may impose sanctions including, 11 where appropriate... dismissal of a case.” 12 Auth., 782 F.2d 829, 831 (9th Cir. 1986). 13 action, with prejudice, based on a party’s failure to prosecute 14 an action, failure to obey a court order, or failure to comply 15 with local rules. 16 (9th Cir. 1995) (dismissal for noncompliance with local rule); 17 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 18 (dismissal for failure to comply with an order requiring 19 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 20 (9th Cir. 1988) (dismissal for failure to comply with local rule 21 requiring pro se plaintiffs to keep court apprised of address); 22 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 23 (dismissal for failure to comply with court order); Henderson v. 24 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 25 of prosecution and failure to comply with local rules). Thompson v. Housing A court may dismiss an See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 26 27 28 1 On June 26, 2012, Petitioner filed a document entitled “Supplemental Act,” which Petitioner certified that he mailed on June 21, 2012. (Doc. 4, 6.) Thus, the document is not responsive to the Court’s order, which was mailed to Petitioner on the same date that Petitioner mailed his supplement to the Court. The supplement addresses Petitioner’s position on general principles of interpretation of plea agreements. 2 1 In determining whether to dismiss an action for lack of 2 prosecution, failure to obey a court order, or failure to comply 3 with local rules, the court must consider several factors: (1) 4 the public’s interest in expeditious resolution of litigation; 5 (2) the court’s need to manage its docket; (3) the risk of 6 prejudice to the defendants; (4) the public policy favoring 7 disposition of cases on their merits; and (5) the availability of 8 less drastic alternatives. 9 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 10 Thompson, 782 F.2d at 831; Henderson, 1260-61; Ghazali, 46 F.3d at 53. 11 In this case, the Court finds that the public’s interest in 12 expeditiously resolving this litigation and the Court’s interest 13 in managing the docket weigh in favor of dismissal, as the case 14 has been pending since May 2012. 15 prejudice to respondents, also weighs in favor of dismissal, 16 since a presumption of injury arises from the occurrence of 17 unreasonable delay in prosecuting an action. 18 West, 542 F.2d 522, 524 (9th Cir. 1976). 19 public policy favoring disposition of cases on their merits -- is 20 greatly outweighed by the factors in favor of dismissal discussed 21 herein. 22 to obey the court’s order will result in dismissal satisfies the 23 “consideration of alternatives” requirement. 24 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 25 1424. 26 amendment expressly informed Petitioner that a failure to comply 27 with the order would result in dismissal of the action without 28 prejudice. The third factor, risk of Anderson v. Air The fourth factor -- Finally, a court’s warning to a party that his failure Ferdik v. Bonzelet, The Court’s order directing Petitioner to file an (Doc. 3, 9.) Thus, Petitioner received adequate 3 1 warning that dismissal would result from his noncompliance with 2 the Court’s order. 3 III. 4 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 5 appealability, an appeal may not be taken to the Court of Appeals 6 from the final order in a habeas proceeding in which the 7 detention complained of arises out of process issued by a state 8 court. 9 U.S. 322, 336 (2003). 10 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue only if the 11 applicant makes a substantial showing of the denial of a 12 constitutional right. 13 petitioner must show that reasonable jurists could debate whether 14 the petition should have been resolved in a different manner or 15 that the issues presented were adequate to deserve encouragement 16 to proceed further. 17 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 18 certificate should issue if the Petitioner shows that jurists of 19 reason would find it debatable whether the petition states a 20 valid claim of the denial of a constitutional right and that 21 jurists of reason would find it debatable whether the district 22 court was correct in any procedural ruling. 23 529 U.S. 473, 483-84 (2000). 24 conducts an overview of the claims in the habeas petition, 25 generally assesses their merits, and determines whether the 26 resolution was debatable among jurists of reason or wrong. 27 It is necessary for an applicant to show more than an absence of 28 frivolity or the existence of mere good faith; however, it is not § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court 4 Id. 1 necessary for an applicant to show that the appeal will succeed. 2 Miller-El v. Cockrell, 537 U.S. at 338. 3 A district court must issue or deny a certificate of 4 appealability when it enters a final order adverse to the 5 applicant. 6 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 7 debate whether the petition should have been resolved in a 8 different manner. 9 of the denial of a constitutional right. 10 11 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 12 IV. 13 Accordingly, it is RECOMMENDED that: 14 1) Recommendations The petition be DISMISSED without prejudice pursuant to 15 Local Rule 110 for Petitioner’s failure to comply with the 16 Court’s order and to prosecute this action; and 17 18 2) The Court DECLINE to issue a certificate of appealability; and 19 3) 20 These findings and recommendations are submitted to the 21 United States District Court Judge assigned to the case, pursuant 22 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 23 the Local Rules of Practice for the United States District Court, 24 Eastern District of California. 25 being served with a copy, any party may file written objections 26 with the Court and serve a copy on all parties. 27 should be captioned “Objections to Magistrate Judge’s Findings 28 and Recommendations.” The Clerk be DIRECTED to close the action. Within thirty (30) days after Such a document Replies to the objections shall be served 5 1 and filed within fourteen (14) days (plus three (3) days if 2 served by mail) after service of the objections. 3 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 4 636 (b)(1)(C). 5 objections within the specified time may waive the right to 6 appeal the District Court’s order. 7 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 8 9 10 IT IS SO ORDERED. Dated: ie14hj September 8, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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