(HC) Kurbegovich v. Unknown Politicians, No. 1:2014cv01202 - Document 6 (E.D. Cal. 2014)

Court Description: FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR PETITIONER'S FAILURE TO FOLLOW AN ORDER OF THE COURT, TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND TO DIRECT THE CLERK TO CLOSE THE CASE signed by Magistrate Judge Sheila K. Oberto on 11/6/2014. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/11/2014.(Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 MUHAREM KURBEGOVICH, Case No. 1:14-cv-01202-LJO-SKO-HC 12 FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR PETITIONER’S FAILURE TO FOLLOW AN ORDER OF THE COURT, TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND TO DIRECT THE CLERK TO CLOSE THE CASE 13 14 Petitioner, v. 15 UNKNOWN POLITICIANS, 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents. OBJECTIONS DEADLINE: THIRTY (30) DAYS Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court are the petition, which was filed on July 31, 2014, and two orders to Petitioner to inform the Court within thirty days of his decision to consent to, or to decline to consent to, the jurisdiction of a Magistrate Judge in the present case. The notices were served by mail on Petitioner at his address as listed in the docket on August 4, 2014, and September 22, 2014. I. Dismissal of the Petition Local Rule 110 provides: 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court. District courts have the inherent power to control their dockets and “in the exercise of that power, they may impose sanctions including, where appropriate... dismissal of a case.” Auth., 782 F.2d 829, 831 (9th Cir. 1986). Thompson v. Housing A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). Here, Petitioner has repeatedly failed to respond to the Court’s orders regarding consent for a period of over three months. In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the Court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the respondents; (4) the public policy favoring disposition of cases on 2 1 their merits; and (5) the availability of less drastic alternatives. 2 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 3 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 4 53. 5 The petition in this case has been pending for a lengthy 6 period; thus, the Court finds the public’s interest in expeditiously 7 resolving this litigation and the Court’s interest in managing the 8 docket weigh in favor of dismissal. The third factor, risk of 9 prejudice to respondents, also weighs in favor of dismissal, since a 10 presumption of injury arises from the occurrence of unreasonable 11 delay in prosecuting an action. 12 524 (9th Cir. 1976). Anderson v. Air West, 542 F.2d 522, The fourth factor -- public policy favoring 13 disposition of cases on their merits -- is greatly outweighed by the 14 factors in favor of dismissal discussed herein. Finally, the Court 15 has reviewed the “consideration of alternatives” requirement. See, 16 Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; 17 Henderson, 779 F.2d at 1424. Because Petitioner declines to respond 18 to the Court’s repeated directives and has failed to prosecute the 19 case by refusing to indicate his voluntary choice regarding 20 jurisdiction in this proceeding, there is no effective alternative 21 to dismissal. 22 The Court concludes that dismissal is appropriate. 23 II. 24 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 25 appealability, an appeal may not be taken to the Court of Appeals 26 from the final order in a habeas proceeding in which the detention 27 complained of arises out of process issued by a state court. 28 28 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 3 1 (2003). A district court must issue or deny a certificate of 2 appealability when it enters a final order adverse to the applicant. 3 Rule 11(a) of the Rules Governing Section 2254 Cases. 4 A certificate of appealability may issue only if the applicant 5 makes a substantial showing of the denial of a constitutional right. 6 ' 2253(c)(2). Under this standard, a petitioner must show that 7 reasonable jurists could debate whether the petition should have 8 been resolved in a different manner or that the issues presented 9 were adequate to deserve encouragement to proceed further. Miller- 10 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 11 473, 484 (2000)). A certificate should issue if the Petitioner 12 shows that jurists of reason would find it debatable whether: (1) 13 the petition states a valid claim of the denial of a constitutional 14 right, and (2) the district court was correct in any procedural 15 ruling. 16 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the 17 claims in the habeas petition, generally assesses their merits, and 18 determines whether the resolution was debatable among jurists of 19 reason or wrong. Id. An applicant must show more than an absence 20 of frivolity or the existence of mere good faith; however, the 21 applicant need not show that the appeal will succeed. Miller-El v. 22 Cockrell, 537 U.S. at 338. 23 Here, it does not appear that reasonable jurists could debate 24 whether the petition should have been resolved in a different 25 manner. Petitioner has not made a substantial showing of the denial 26 of a constitutional right. Accordingly, the Court should decline to 27 issue a certificate of appealability. 28 /// 4 1 III. Recommendations 2 Accordingly, it is RECOMMENDED that: 3 1) The petition be DISMISSED without prejudice for Petitioner’s 4 failure to follow the orders of the Court and failure to prosecute 5 the action; 2) The Court DECLINE to issue a certificate of appealability; 6 7 and 8 3) The Clerk be DIRECTED to close the action because an order 9 of dismissal would terminate the proceeding in its entirety. 10 These findings and recommendations are submitted to the United 11 States District Court Judge assigned to the case, pursuant to the 12 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 13 Rules of Practice for the United States District Court, Eastern 14 District of California. Within thirty (30) days after being served 15 with a copy, any party may file written objections with the Court 16 and serve a copy on all parties. Such a document should be 17 captioned AObjections to Magistrate Judge=s Findings and 18 Recommendations.@ Replies to the objections shall be served and 19 filed within fourteen (14) days (plus three (3) days if served by 20 mail) after service of the objections. The Court will then review 21 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 22 The parties are advised that failure to file objections within the 23 specified time may waive the right to appeal the District Court=s 24 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 IT IS SO ORDERED. 27 28 Dated: November 6, 2014 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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