(HC)Wiessmen v. Frauenheim, No. 1:2016cv00803 - Document 6 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Failure to Obey a Court Order; ORDER DIRECTING That Objections be Filed Within Twenty-One; ORDER DIRECTING Clerk of Court to Assign District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 8/13/16. This case has been assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston; The new case number is 1:16-cv-00803-LJO-JLT (HC). (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN WIESSMEN, 12 13 14 15 16 17 18 Petitioner, v. SCOTT FRAUENHEIM, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-00803-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO OBEY A COURT ORDER ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE 19 On June 13, 2016, the Court ordered the petitioner to show cause why the petition should not 20 be dismissed because none of the claims in the petition were exhausted in state court. (Doc. 4) The 21 Court ordered the Petitioner to file a written response within 30 days. Id. He has not done so. 22 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or 23 with any order of the Court may be grounds for imposition by the Court of any and all 24 sanctions…within the inherent power of the Court.” District Courts have the inherent power to control 25 their dockets and “in the exercise of that power, they may impose sanctions including, where 26 appropriate…dismissal of a case. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 27 court may dismiss an action with prejudice, based on a party’s failure to prosecute an action, failure to 28 obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 531 1 54 (9th Cir. 1995)(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 2 1260-1261 (9th Cir. 1992)(dismissal for failure to comply with an order requiring amendment of 3 complaint); Carey v. King, 856 F.2d 1439, 1440-1441 (9th Cir. 1988)(dismissal for failure to comply 4 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal 5 Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal for failure to comply with court order); 6 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)(dismissal for lack of prosecution and 7 failure to comply with local rules). In determining whether to dismiss an action for lack of prosecution, the court must consider 8 9 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 10 manage its docket; (3) the risk of prejudice to the Respondents; (4) the public policy favoring 11 disposition of cases on their merits; and, (5) the availability of less drastic alternatives. Henderson, 12 779 F.2d at 1423; Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-1261; Malone, 833 F.2d at 130; 13 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-1424. Here, the Court finds that the public’s interest in expeditiously resolving this litigation and the 14 15 Court’s interest in managing the docket weigh in favor of dismissal, as this case has been pending 16 since June 10, 2016. The third factor, risk of prejudice to Respondent, also weighs in favor of 17 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 18 prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 19 public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in 20 favor of dismissal discussed herein. Finally, a court’s warning to a party that failure to obey the 21 court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 22 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order dated ***, 23 2014, expressly stated: “Petitioner is forewarned that his failure to comply with this order or his failure 24 to show exhaustion will result in a recommendation that the Petition be dismissed pursuant to Local 25 Rule 110.” (Doc. 4, p. 4). This admonition was written in bold and underlined for emphasis. Thus, 26 Petitioner had adequate warning that dismissal would result from his noncompliance with the Court’s 27 order. 28 /// 2 ORDER 1 2 3 Accordingly, the Clerk of the Court is DIRECTED to assign a United States District Judge to this case. 4 RECOMMENDATION 5 For the foregoing reasons, the Court RECOMMENDS that the instant petition for writ of 6 7 habeas corpus (Doc. 1), be DISMISSED for failure to obey the Court’s orders. This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 9 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 10 after being served with a copy of this Findings and Recommendation, any party may file written 11 objections with the Court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 13 served and filed within 10 days (plus three days if served by mail) 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 Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 20 IT IS SO ORDERED. Dated: August 13, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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