Raymond Garcia v. M.D. Biter

Filing 8


Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WESTERN DIVISION RAYMOND GARCIA, 12 Petitioner, 13 14 v. M.D. BITER, 15 Respondent. ) ) ) ) ) ) ) ) ) ) Case No. CV 14-1944-RT(AJW) MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE 16 17 Petitioner filed this petition for writ of habeas corpus on March 18 6, 2014.1 19 why the petition should not be dismissed as barred by the one year 20 limitation period. See 28 U.S.C. §2244(d)(1). 21 that appeared 22 conviction became final in January, 1998, and petitioner had one year 23 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 24 25 26 27 28 1 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). 1 March, 6, 2014 – more than fifteen years after the limitation period 2 expired. 3 Cir.), cert. denied, 534 U.S. 978 (2001). 4 explained that it did not appear that petitioner had filed any state 5 petitions during the relevant period, so the limitation period was not 6 statutorily tolled.2 7 provided any explanation for his delay suggesting that he might be 8 entitled to equitable tolling. 9 response to the order setting forth the dates on which he filed any 10 state petitions and also setting forth any evidence suggesting that he 11 had 12 circumstance beyond his control made it impossible for him to file his 13 petition on time. 14 (2005). 15 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 16 result in the dismissal of his petition. 17 April 29, 2014. 18 petitioner has filed neither a response to the order to show cause nor 19 a request for an extension of time to do so. 20 reasons, the petition should be dismissed. 21 22 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- 23 24 25 26 27 28 2 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). 2 1 established. 2 U.S. 626, 629-630 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th 3 Cir.), cert. denied, 506 U.S. 915 (1992). 4 sanction 5 disposition of pending cases and to avoid congestion in the calendar 6 of the District Courts.” 7 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 8 prosecute, failure to comply with court orders, or failure to comply 9 with a local rule, a district court should consider the following five 10 factors: “(1) the public's interest in expeditious resolution of 11 litigation; (2) the court's need to manage its docket; (3) the risk of 12 prejudice 13 disposition of cases on their merits; and (5) the availability of less 14 drastic sanctions.” 15 Litig.,460 F.3d 1217, 1226-1228, 1234-1252 (9th Cir. 2006) (discussing 16 and applying those factors); Pagtalunan v. Galaza, 291 F.3d 639, 642 17 (9th Cir. 2002) (same), cert. denied, 538 U.S. 909 (2003); see 18 generally Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 19 (9th Cir. 2004) (failure to comply with discovery orders); Southwest 20 Marine Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (failure to 21 prosecute), cert. denied, 523 U.S. 1007 (2001). Regardless of whether 22 a litigant's conduct is most properly characterized as failing to 23 prosecute, comply with orders, or follow a local rule, the applicable 24 standard is the same. 25 The to first the and defendants; (4) the public policy favoring In re Phenylpropanolamine (PPA) Prod. Liab. second factors — the public’s interest in 26 expeditious resolution of litigation and the court’s need to manage 27 its docket — favor dismissal. See Computer Task Group, 364 F.3d at 28 1115; Pagtalunan, 291 F.3d at 642; Yourish v. California Amplifier, 3 1 191 F.3d 983, 990 (9th Cir. 1999)); see also In re PPA Prod. Liab. 2 Litig.,460 F.3d at 1234 (“[D]ismissal serves the public interest in 3 expeditious resolution of litigation as well as the court's need to 4 manage the docket when a plaintiff's noncompliance has caused the 5 action to come to a halt, thereby allowing the plaintiff, rather than 6 the court, to control the pace of the docket.”). 7 The third factor — prejudice to the defendants or respondents — 8 also weighs in favor of dismissal. In the absence of a showing to the 9 contrary, prejudice to the defendants or respondents is presumed from 10 unreasonable delay. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 11 1994)(citing Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 12 1976)); see also 13 unreasonable delay weighed in favor of dismissal, and noting that 14 “[u]nnecessary delay inherently increases the risk that witnesses’ 15 memories will fade and evidence will become stale”) (citing Sibron v. 16 New York, 392 U.S. 40, 57 (1968)). Pagtalunan, 291 F.3d at 642-643 (holding that 17 The fourth factor — the availability of less drastic sanctions — 18 also supports dismissal. The Court explicitly warned petitioner about 19 the consequences of failing to file a response to the order to show 20 cause. 21 that failure to obey a court order will result in dismissal can itself 22 meet the ‘consideration of alternatives’ requirement.”); Ferdik, 963 23 F.2d at 1262 (“[A] district court's warning to a party that his 24 failure to obey the court's order will result in dismissal can satisfy 25 the ‘consideration of alternatives’ requirement.”); Anderson, 542 F.2d 26 at 525 (“There is no requirement that every single alternative remedy 27 be 28 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 4 1 alternatives is all that is required.”). 2 The fifth factor — the public policy favoring disposition of 3 cases on their merits — weighs against dismissal, as it always does. 4 Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138 5 F.3d 6 disposition 7 responsibility to comply with orders issued by the court and “to move 8 towards that disposition at a reasonable pace, and to refrain from 9 dilatory and evasive tactics.” In re Eisen, 31 F.3d 1447, 1454 (9th 10 Cir. 1994) (quoting Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 11 (9th Cir. 1991)). 12 393, 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 13 disjunctive balancing test, so not all five factors must support 14 dismissal. 15 1057 (9th Cir. 1998) (noting that the five-factor test “amounts to a 16 way for a district judge to think about what to do, not a series of 17 conditions precedent” to dismissal), cert. denied, 526 U.S. 1064 18 (1999); Hernandez, 138 F.3d at 399 (explaining that dismissal is 19 appropriate when four factors support dismissal or where three factors 20 “strongly” support dismissal). 21 dismissal in this case. 22 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 23 should 24 dismissal is imminent. 25 Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 26 1990). That prerequisite has been satisfied in this case. Therefore, 27 dismissal under Rule 41(b) is appropriate. 28 It be is notified within of the the basis for dismissal and See Ferdik, 963 F.2d at 1262; Court’s discretion 5 to warned that West Coast determine whether 1 dismissal for failure to prosecute and for failure to comply with 2 orders should be with prejudice or without prejudice. Considering all 3 the circumstances, dismissal without prejudice is more appropriate in 4 this case. 5 6 7 For the foregoing reasons, this case is dismissed without prejudice. It is so ordered. 8 9 Dated: June 4, 2014 10 11 Robert Timlin United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?