(HC) Hackett v. City Of Fresno et al, No. 1:2009cv00855 - Document 18 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 7/16/2010 recommending that action be DISMISSED re 1 Petition for Writ of Habeas Corpus. Referred to Judge Oliver W. Wanger; Objections to F&R due by 8/19/2010. (Lundstrom, T)
Download PDF
<![CDATA[
(HC) Hackett v. City Of Fresno et al Doc. 18 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 ERIC LEE HACKETT, 13 14 15 16 17 ) ) Petitioner, ) ) v. ) ) ) CITY OF FRESNO et al., ) ) Respondents. ) ________________________________) 1:09-cv-00855 OWW MJS HC FINDINGS AND RECOMMENDATION FOR DISMISSAL DUE TO PETITIONER’S FAILURE TO FOLLOW COURT ORDER [Doc. 17] 18 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 19 20 U.S.C. § 2254. 21 Petitioner’s petition was filed on May 14, 2009. Following a preliminary review of the 22 petition, the court on May 3, 2010, issued an order to show cause why it should not be 23 dismissed for Petitioner's failure to exhaust state remedies. (Order to Show Cause, ECF No. 24 17.) Petitioner was given thirty (30) days to inform the Court whether his claims had been 25 presented to the California Supreme Court. More than thirty (30) days have passed, and Petitioner has not complied with the court 26 27 order. 28 /// U .S. D istrict C ourt E. D . C alifornia -1Dockets.Justia.com 1 /// 2 I. DISCUSSION 3 Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these 4 Rules or with any order of the Court may be grounds for imposition by the Court of any and 5 all sanctions authorized by statute or Rule or within the inherent power of the Court." District 6 courts have the inherent power to control their dockets and in the exercise of that power they 7 may impose sanctions including dismissal of a case. Thompson v. Housing Auth., 782 F.2d 8 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s 9 failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. 10 See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance 11 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 12 failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 13 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se 14 plaintiffs to keep court apprized of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 15 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 16 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with 17 local rules). 18 In determining whether to dismiss an action for lack of prosecution, failure to obey a 19 court order, or failure to comply with local rules, the court must consider several factors: (1) 20 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 21 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 22 cases on their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 23 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; 24 Henderson, 779 F.2d at 1423-24. 25 In the instant case, the Court finds that the public’s interest in expeditiously resolving 26 this litigation and the Court’s interest in managing the docket weigh in favor of dismissal 27 because this case has been pending in this Court since May 14, 2009. The third factor, risk 28 of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury U .S. D istrict C ourt E. D . C alifornia -2- 1 arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 2 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their 3 merits, is greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to 4 a party that his failure to obey the court’s order will result in dismissal satisfies the 5 “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 6 132-33; Henderson, 779 F.2d at 1424. The Court’s order for Petitioner to show that he had 7 exhausted his state remedies stated that dismissal would result from non-compliance with the 8 Court's order. 9 II. Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 10 11 RECOMMENDATION Petitioner's failure to comply with a court order. 12 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, 13 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and 14 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District 15 of California. Within thirty (30) days after service of the Findings and Recommendation, any 16 party may file written objections with the court and serve a copy on all parties. Such a 17 document should be captioned “Objections to Magistrate Judge’s Findings and 18 Recommendation.” Replies to the objections shall be served and filed within fourteen (14) 19 days after service of the objections. The Court will then review the Magistrate Judge’s ruling 20 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections 21 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 22 Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 25 IT IS SO ORDERED. 26 Dated: ci4d6 July 16, 2010 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 27 28 U .S. D istrict C ourt E. D . C alifornia -3-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
