-DLB (HC)Lescuer v. Fresno City, No. 1:2010cv01919 - Document 7 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Instant 1 Petition for Writ of Habeas Corpus be Dismissed signed by Magistrate Judge Dennis L. Beck on 12/8/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 1/13/2011. (Sant Agata, S)

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-DLB (HC)Lescuer v. Fresno City Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SONYA MARIE LESCUER, 10 11 1:10-cv-01919-OWW-DLB (HC) Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF PETITION FOR FAILURE TO COMPLY WITH A COURT ORDER v. 12 FRESNO CITY, [Doc. 4] 13 Respondent. 14 / 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 Petitioner filed the instant petition for writ of habeas corpus on October 14, 2010. On 18 October 22, 2010, the Court dismissed the petition with leave to amend. Petitioner has failed to 19 file an amended petition or otherwise responded to the order. 20 Local Rule 110 provides that a “failure of counsel or of a party to comply with these 21 Local Rules or with any order of the Court may be grounds for the imposition by the Court of any 22 and all sanctions . . . within the inherent power of the Court.@ District courts have the inherent 23 power to control their dockets and Ain the exercise of that power, they may impose sanctions 24 including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 25 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s 26 failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. 27 See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance with 28 1 Dockets.Justia.com 1 local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 2 comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 3 F.2d 128, 130 (9th Cir. 1987)(dismissal for failure to comply with court order). 4 In determining whether to dismiss an action for lack of prosecution, the Court must 5 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 6 Court’s need to manage its docket; (3) the risk of prejudice to the Respondents; (4) the public 7 policy favoring disposition of cases on their merits; and, (5) the availability of less drastic 8 alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 9 F.2d 1439 (9th Cir. 1988). The Court finds that the public’s interest in expeditiously resolving 10 this litigation and the court’s interest in managing the docket weigh in favor of dismissal, as this 11 case has been pending since October 14, 2010. The Court cannot hold this case in abeyance 12 indefinitely awaiting compliance by Petitioner. The third factor, risk of prejudice to 13 Respondents, also weighs in favor of dismissal, since a presumption of injury arises from the 14 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 15 524 (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, 17 given Petitioner’s noncompliance with the Court’s order, no lesser sanction is feasible. 18 19 Based on the foregoing, it is HEREBY RECOMMENDED that the instant petition for writ of habeas corpus be DISMISSED. 20 This Findings and Recommendation is submitted to the assigned United States District 21 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 22 Local Rules of Practice for the United States District Court, Eastern District of California. 23 Within thirty (30) days after being served with a copy, any party may file written objections with 24 the court and serve a copy on all parties. Such a document should be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served 26 and filed within fourteen (14) days after service of the objections. The Court will then review the 27 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that 28 /// 2 1 failure to file objections within the specified time may waive the right to appeal the District 2 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: 3b142a December 8, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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