Raymond Garcia v. M.D. Biter

Filing 8

MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE by Judge Robert J. Timlin. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION
RAYMOND GARCIA,

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Petitioner,

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v.
M.D. BITER,

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Respondent.

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Case No. CV 14-1944-RT(AJW)

MEMORANDUM AND ORDER
DISMISSING PETITION
WITHOUT PREJUDICE

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Petitioner filed this petition for writ of habeas corpus on March

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6, 2014.1

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why the petition should not be dismissed as barred by the one year

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limitation period.

See 28 U.S.C. §2244(d)(1).

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that

appeared

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conviction became final in January, 1998, and petitioner had one year

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within which to file a federal petition, but he did not do so until

the

On April 1, 2014, the Court issued an order to show cause

petition

to

be

untimely

The order explained
because

petitioner’s

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Although the petition was filed by the Clerk’s Office on March
14, 2014, petitioner is entitled to the benefit of the “mailbox rule,”
pursuant to which a state or federal habeas petition is deemed filed
on the date on which petitioner handed it to the proper prison
official for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988)
(holding that a pro se prisoner’s pleading is deemed filed at the
moment it is delivered to prison authorities for forwarding to the
district court).

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March, 6, 2014 – more than fifteen years after the limitation period

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expired.

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Cir.), cert. denied, 534 U.S. 978 (2001).

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explained that it did not appear that petitioner had filed any state

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petitions during the relevant period, so the limitation period was not

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statutorily tolled.2

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provided any explanation for his delay suggesting that he might be

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entitled to equitable tolling.

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response to the order setting forth the dates on which he filed any

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state petitions and also setting forth any evidence suggesting that he

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had

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circumstance beyond his control made it impossible for him to file his

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petition on time.

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(2005).

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been

See Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th

pursuing

In addition, the Court

Finally, the Court noted that petitioner had not

his

rights

Petitioner was directed to file a

diligently

but

some

extraordinary

See Pace v. DiGuglielmo, 544 U.S. 408, 418 & n.8

Petitioner was cautioned that failure to file a response could

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result in the dismissal of his petition.

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April 29, 2014.

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petitioner has filed neither a response to the order to show cause nor

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a request for an extension of time to do so.

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reasons, the petition should be dismissed.

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His response was due on

As of the date of this report and recommendation,

For the following

A district court's authority to dismiss a litigant's action for
failure

to

prosecute

or

to

comply

with

court

orders

is

well-

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Petitioner indicated that he filed several habeas corpus
petitions in the state courts, but the first such petition was not
filed until August 6, 2013 [Petition at 3-4 & Exs. C-F], more than a
decade after the limitation period expired.
See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir.) (“section 2244(d) does not
permit the reinitiation of the limitations period that has ended
before the state petition was filed”), cert. denied, 540 U.S. 924
(2003).
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established.

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U.S. 626, 629-630 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th

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Cir.), cert. denied, 506 U.S. 915 (1992).

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sanction

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disposition of pending cases and to avoid congestion in the calendar

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of the District Courts.”

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In

is

See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370

necessary

determining

in

order

to

“The power to invoke this

prevent

undue

delays

in

the

Link, 370 U.S. at 629-630.

whether

to

dismiss

a

case

for

failure

to

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prosecute, failure to comply with court orders, or failure to comply

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with a local rule, a district court should consider the following five

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factors: “(1) the public's interest in expeditious resolution of

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litigation; (2) the court's need to manage its docket; (3) the risk of

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prejudice

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disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.”

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Litig.,460 F.3d 1217, 1226-1228, 1234-1252 (9th Cir. 2006) (discussing

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and applying those factors); Pagtalunan v. Galaza, 291 F.3d 639, 642

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(9th Cir. 2002) (same), cert. denied, 538 U.S. 909 (2003); see

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generally Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115

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(9th Cir. 2004) (failure to comply with discovery orders); Southwest

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Marine Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (failure to

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prosecute), cert. denied, 523 U.S. 1007 (2001). Regardless of whether

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a litigant's conduct is most properly characterized as failing to

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prosecute, comply with orders, or follow a local rule, the applicable

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standard is the same.

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The

to

first

the

and

defendants;

(4)

the

public

policy

favoring

In re Phenylpropanolamine (PPA) Prod. Liab.

second

factors

—

the

public’s

interest

in

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expeditious resolution of litigation and the court’s need to manage

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its docket — favor dismissal. See Computer Task Group, 364 F.3d at

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1115; Pagtalunan, 291 F.3d at 642; Yourish v. California Amplifier,
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191 F.3d 983, 990 (9th Cir. 1999)); see also In re PPA Prod. Liab.

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Litig.,460 F.3d at 1234 (“[D]ismissal serves the public interest in

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expeditious resolution of litigation as well as the court's need to

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manage the docket when a plaintiff's noncompliance has caused the

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action to come to a halt, thereby allowing the plaintiff, rather than

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the court, to control the pace of the docket.”).

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The third factor — prejudice to the defendants or respondents —

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also weighs in favor of dismissal. In the absence of a showing to the

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contrary, prejudice to the defendants or respondents is presumed from

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unreasonable delay.

In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir.

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1994)(citing Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.

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1976)); see also

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unreasonable delay weighed in favor of dismissal, and noting that

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“[u]nnecessary delay inherently increases the risk that witnesses’

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memories will fade and evidence will become stale”) (citing Sibron v.

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New York, 392 U.S. 40, 57 (1968)).

Pagtalunan, 291 F.3d at 642-643 (holding that

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The fourth factor — the availability of less drastic sanctions —

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also supports dismissal. The Court explicitly warned petitioner about

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the consequences of failing to file a response to the order to show

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cause.

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that failure to obey a court order will result in dismissal can itself

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meet the ‘consideration of alternatives’ requirement.”); Ferdik, 963

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F.2d at 1262 (“[A] district court's warning to a party that his

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failure to obey the court's order will result in dismissal can satisfy

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the ‘consideration of alternatives’ requirement.”); Anderson, 542 F.2d

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at 525 (“There is no requirement that every single alternative remedy

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be

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appropriate.

See In re PPA Prod. Liab. Litig., 460 F.3d at 1229 (“Warning

examined

by

the

court

before

the

sanction

of

dismissal

is

The reasonable exploration of possible and meaningful
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alternatives is all that is required.”).

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The fifth factor — the public policy favoring disposition of

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cases on their merits — weighs against dismissal, as it always does.

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Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138

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F.3d

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disposition

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responsibility to comply with orders issued by the court and “to move

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towards that disposition at a reasonable pace, and to refrain from

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dilatory and evasive tactics.” In re Eisen, 31 F.3d 1447, 1454 (9th

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Cir. 1994) (quoting Morris v. Morgan Stanley & Co., 942 F.2d 648, 652

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(9th Cir. 1991)).

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393,

The

399

(9th

on

Cir.

the

1998)).

merits,

Despite

however,

it

the

policy

remains

a

favoring

litigant's

Petitioner has not fulfilled that obligation.

five-factor

test

for

dismissal

under

Rule

41(b)

is

a

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disjunctive balancing test, so not all five factors must support

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dismissal.

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1057 (9th Cir. 1998) (noting that the five-factor test “amounts to a

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way for a district judge to think about what to do, not a series of

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conditions precedent” to dismissal), cert. denied, 526 U.S. 1064

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(1999); Hernandez, 138 F.3d at 399 (explaining that dismissal is

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appropriate when four factors support dismissal or where three factors

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“strongly” support dismissal).

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dismissal in this case.

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See Valley Eng’rs Inc. v. Elec. Eng’g

Co., 158 F.3d 1051,

Four of the five factors support

Prior to dismissal on the court’s own motion, a pro se petitioner

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should

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dismissal is imminent.

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Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir.

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1990). That prerequisite has been satisfied in this case. Therefore,

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dismissal under Rule 41(b) is appropriate.

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It

be

is

notified

within

of

the

the

basis

for

dismissal

and

See Ferdik, 963 F.2d at 1262;

Court’s

discretion
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to

warned

that

West Coast

determine

whether

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dismissal for failure to prosecute and for failure to comply with

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orders should be with prejudice or without prejudice. Considering all

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the circumstances, dismissal without prejudice is more appropriate in

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this case.

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For

the

foregoing

reasons,

this

case

is

dismissed

without

prejudice.
It is so ordered.

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Dated: June 4, 2014

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Robert Timlin
United States District Judge

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