(HC)Shadden v. On Habeas Corpus, No. 1:2012cv01455 - Document 14 (E.D. Cal. 2013)
Court Description: ORDER Directing Clerk Of Court To Assign District Judge, FINDINGS And RECOMMENDATIONS Regarding Petitioner's Failure To Follow Court Orders (Docs. # 8 , 10 ), signed by Magistrate Judge Gary S. Austin on 1/7/2013. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/25/2013. (Fahrney, E)
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(HC)Shadden v. On Habeas Corpus Doc. 14 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 THOMAS SHADDEN, 1:12-CV-01455 GSA HC 13 Petitioner, 14 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v. 15 16 DERRAL G. ADAMS, 17 FINDINGS AND RECOMMENDATION REGARDING PETITIONER’S FAILURE TO FOLLOW COURT ORDERS [Docs. #8,10] Respondent. ___________________________________/ 18 19 20 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 21 On April 10, 2012, Petitioner filed a petition for writ of habeas corpus in the Ninth Circuit 22 Court of Appeals. On September 5, 2012, the Ninth Circuit transferred the petition to this Court. 23 On September 11, 2012, the Court issued new case documents, and ordered Petitioner to complete 24 and file a form indicating consent or decline to the jurisdiction of the magistrate judge. Petitioner 25 was granted thirty (30) days to file the completed form. Over thirty (30) days passed, and Petitioner 26 failed to comply. On October 29, 2012, the Court issued the order a second time and provided 27 Petitioner with another thirty (30) days to comply. Again, thirty (30) days passed with no response 28 from Petitioner. U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 DISCUSSION 2 Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these Rules 3 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 4 authorized by statute or Rule or within the inherent power of the Court.@ District courts have the 5 inherent power to control their dockets and Ain the exercise of that power, they may impose sanctions 6 including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 7 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to 8 prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., 9 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 10 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 11 order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 12 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of 13 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 14 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 15 lack of prosecution and failure to comply with local rules). In determining whether to dismiss an 16 action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the 17 court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; 18 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 19 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 20 alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; 21 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 22 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 23 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because this 24 case has been pending in this Court since September 5, 2012. The third factor, risk of prejudice to 25 defendants, also weighs in favor of dismissal because a presumption of injury arises from any 26 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 27 1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly 28 outweighed by the factors in favor of dismissal. U .S. D istrict C ourt E. D . C alifornia cd 2 1 ORDER 2 3 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to randomly assign a district judge to this case. 4 RECOMMENDATION 5 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 6 Petitioner's failure to comply with a court order. 7 This Findings and Recommendation is submitted to the district judge assigned to this case, 8 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 9 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. 10 Within fifteen (15) days after service of the Findings and Recommendation, any party may file 11 written objections with the court and serve a copy on all parties. Such a document should be 12 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 13 objections shall be served and filed within fourteen (14) days after service of the objections. The 14 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 IT IS SO ORDERED. 19 Dated: 6i0kij January 7, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 3
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