(HC) Matamoros-Proano v. ICE/DHS et al, No. 1:2015cv01766 - Document 7 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Petitioner's Failure to Comply with the Court's Order to File an Amended Petition; ORDER Directing that Objections be Filed within Twenty-One Days; ORDER Directing Clerk of Court to Assign District Judge to Case signed by District Judge Lawrence J. O'Neill on 03/08/2016. Referred to Judge O'Neill; Objections to F&R due by 4/1/2016.(Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 JIMMY STALIN MATAMOROS-PROANO, ) ) Petitioner, ) ) v. ) ) ICE, et al., ) ) Respondents. ) ) ) ) ) Case No.: 1:15-cv-01766-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR PETITIONER’S FAILURE TO COMPLY WITH THE COURT’S ORDER TO FILE AN AMENDED PETITION ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE 19 At the time of filing of the petition, Petitioner was detained by the United States Bureau of 20 Immigration and Customs Enforcement. Seemingly, he claimed that his detention was unlawful, 21 though the exact confines of his complaint are unclear. The Court ordered him to file an amended 22 petition and, when he failed to do so, ordered him to show cause why the matters should not be 23 dismissed. He has failed to respond. Thus, the Court recommends the petition be DISMISSED. 24 25 PROCEDURAL HISTORY After a preliminary review of the petition, the Court was unable to proceed because Petitioner 26 had not provided sufficient information regarding his claims. Accordingly, the Court ordered 27 Petitioner to file an amended petition within thirty days. (Doc. 3). When Petitioner failed to respond, 28 the Court ordered him to show cause why the petition should not be dismissed. (Doc. 6). The Court 1 1 expressly emphasized that Petitioner’s failure to respond could result in a recommendation that the 2 petition be dismissed. On February 5, 2016, the Order to Show Cause sent to Petitioner was returned 3 as “undeliverable, not in custody.” DISCUSSION 4 5 In determining whether to dismiss an action for lack of prosecution, the court must consider 6 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 7 manage its docket; (3) the risk of prejudice to the Respondents; (4) the public policy favoring 8 disposition of cases on their merits; and, (5) the availability of less drastic alternatives. Henderson v. 9 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 10 The Court finds that the public’s interest in expeditiously resolving this litigation and the 11 Court’s interest in managing the docket weigh in favor of dismissal, as this case has been pending 12 since November 23, 2015 with no response whatever from Petitioner after that date. The third factor, 13 risk of prejudice to Respondent, also weighs in favor of dismissal, since a presumption of injury arises 14 from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 15 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their 16 merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s 17 warning to a party that failure to obey the court’s order will result in dismissal satisfies the 18 “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 19 132-33; Henderson, 779 F.2d at 1424. The Court’s order of May 24, 2005, expressly stated: 20 “Petitioner is admonished that his failure to comply with this order may result in an order dismissing 21 the petition pursuant to Local Rule 110.” (Doc. 6, p. 1). Thus, Petitioner had adequate warning that 22 dismissal would result from his noncompliance with the Court’s order. Finally, it appears that 23 Petitioner is no longer in custody of ICE, which, if true, would make the petition moot. Accordingly, 24 the Court will recommend that the petition be dismissed for failure to prosecute. ORDER 25 26 27 For the foregoing reasons, the Court ORDERS the Clerk of the Court to assign a United States District Judge to this case. 28 2 1 RECOMMENDATION 2 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 3 4 DISMISSED for failure to prosecute. This Findings and Recommendation is submitted to the United States District Court Judge 5 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 6 Local Rules of Practice for the United States District Court, Eastern District of California. Within 21 7 days after being served with a copy, any party may file written objections with the court and serve a 8 copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings 9 and Recommendation.” Replies to the objections shall be served and filed within 10 days (plus three 10 days if served by mail) after service of the objections. The Court will then review the Magistrate 11 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file 12 objections within the specified time may waive the right to appeal the District Court’s order. Martinez 13 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 17 IT IS SO ORDERED. Dated: March 8, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3
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