Patrick Dwight Birdsong Jr. v. Martin D. Biter

Filing 13

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Virginia A. Phillips. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered denying and dismissing the Petition without prejudice. (Attachments: # 1 Report and Recommendation) (sp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

PATRICK DWIGHT BIRDSONG, JR., )
)
Petitioner,
)
)
v.
)
)
MARTIN D. BITER (Warden),
)
)
)
Respondent.
)
______________________________)

NO. CV 17-3067-VAP(E)

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

17
18

This Report and Recommendation is submitted to the Honorable

19

Virginia A. Phillips, United States District Judge, pursuant to 28

20

U.S.C. section 636 and General Order 05-07 of the United States

21

District Court for the Central District of California.

22
23

PROCEEDINGS

24
25

Petitioner filed a “Petition for Writ of Habeas Corpus by a

26

Person in State Custody” on April 24, 2017.

27

Answer on June 14, 2017.

28

Answer within the allotted time.

Respondent filed an

Petitioner failed to file a Reply to the

1

On July 20, 2017, the Magistrate Judge ordered that Petitioner

2

file a Reply to the Answer within twenty-one (21) days of July 20,

3

2017.

4

“may result in the denial and dismissal of the Petition.”

5

Nevertheless, Petitioner again failed to file a Reply to the Answer

6

within the allotted time.

The Magistrate Judge cautioned Petitioner that failure to do so

7
8

DISCUSSION

9
10

The Petition should be denied and dismissed without prejudice.

11

Petitioner has failed to file a timely Reply, despite a court order

12

that he do so.

13

and expeditious disposition of cases by dismissing actions for failure

14

to prosecute.

15

Court has considered the factors recited in Ferdik v. Bonzelet, 963

16

F.2d 1258, 1260-62 (9th Cir.), cert. denied, 506 U.S. 915 (1992), and

17

has concluded that dismissal without prejudice is appropriate.

18

particular, any less drastic alternative would not be effective under

19

the circumstances of this case.

The Court has inherent power to achieve the orderly

Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962).

In

20
21

RECOMMENDATION

22
23

For all of the foregoing reasons, IT IS RECOMMENDED that the

24

Court issue an Order: (1) accepting and adopting this Report and

25

///

26

///

27

///

28

///
2

The

1

Recommendation; and (2) directing that Judgment be entered denying and

2

dismissing the Petition without prejudice.

3
4

DATED: August 15, 2017.

5
6
7

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

1
2

NOTICE
Reports and Recommendations are not appealable to the Court of

3

Appeals, but may be subject to the right of any party to file

4

objections as provided in the Local Rules Governing the Duties of

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

No notice of appeal pursuant to the

9

If the District Judge enters judgment adverse to Petitioner, the

10

District Judge will, at the same time, issue or deny a certificate of

11

appealability.

12

and Recommendation, the parties may file written arguments regarding

13

whether a certificate of appealability should issue.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Within twenty (20) days of the filing of this Report