Gustavo Rengel v. Warden

Filing 5

ORDER: DISMISSING CASE WITHOUT PREJUDICE by Judge David O. Carter. The above captioned matter is dismissed without prejudice; and Judgment shall be entered accordingly. (see order for details) (hr)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
) NO. CV 18-1605-DOC (KS)
)
)
) ORDER: DISMISSING CASE WITHOUT
) PREJUDICE
WARDEN,
)
)
Respondent.
_________________________________ )
GUSTAVO RENGEL,
Petitioner,
v.

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INTRODUCTION

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On February 27, 2018, Petitioner, a California state prisoner proceeding pro se, filed a

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Request for Extension of Time to File a state habeas petition pursuant to 28 U.S.C. § 2254 in

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the Central District of California. (Dkt. No. 1). Petitioner did not file a petition, only a

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request for additional time to file. On March 8, 2018, the Court issued an Order denying

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Petitioner’s request for an extension of time to file a habeas petition because the Court has no

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authority to grant extensions to the Antiterrorism Effective Death Penalty Act of 1996

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(“AEDPA”) statute of limitations imposed by Congress. (Dkt. No. 3.) The Court advised

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Petitioner that “absent tolling, he has until March 15, 2018 to file a federal habeas petition

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without it being time-barred.” (Dkt. No. 3 at 2.) On March 26, 2018, Petitioner filed a

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second letter with the Court that appears to make an argument that Petitioner should be

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entitled to equitable tolling such that his petition should not be time-barred. (Dkt. No. 4.)

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Petitioner has not filed a petition with evidence demonstrating that he is entitled to equitable

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tolling.

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DISCUSSION

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Rule 41(b) of the Federal Rules of Civil Procedure grants federal district courts the

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authority to sua sponte dismiss actions “if the plaintiff fails to prosecute or to comply

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with . . . a court order.” FED. R. CIV. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-31

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(1962). In determining whether dismissal for lack of prosecution is proper, a court must

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weigh several factors, including: “(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 prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public

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policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002)(citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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In this case, the first two factors – public interest in expeditious resolution of litigation

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and the need to manage the Court’s docket – weigh in favor of dismissal. Petitioner has not

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filed a petition, so there is no operative pleading for the court to rule upon. Petitioner has

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failed to comply with the Court’s March 8, 2018 Order by not filing a petition, which hinders

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the Court’s ability to move the case toward disposition. Without a petition, there is also no

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means of managing the Court’s docket other than dismissing this case. Accordingly, these

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two factors weigh in favor of dismissal.

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The third factor – prejudice to Respondent – also counsels in favor of dismissal.

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“Limitations periods are intended to put defendants on notice of adverse claims and to

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prevent plaintiffs from sleeping on their rights.” Crown v. Parker, 462 U.S. 345, 352

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(1983)(citations omitted). In this case, Respondent has not been served with the petition

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because there is no petition. Petitioner is asking the Court to grant an extension of time to

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file a petition after the statute of limitations period appears to have expired. That defeats the

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purpose of the statute of limitations regarding Respondent’s notice of adverse claims. While

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Petitioner may be entitled to equitable tolling based on the circumstances surrounding his

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case, the Court cannot find that equitable tolling is warranted without allowing Respondent

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to have an opportunity to file a motion to dismiss arguing why equitable tolling is not

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warranted in this case. Respondent cannot file a motion to dismiss on a petition that has not

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been filed. Accordingly, Respondent would be prejudiced by Petitioner’s attempt to toll the

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statute of limitations without giving proper notice and an opportunity to respond and this

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factor weighs in favor of dismissing this action.

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The fourth factor – the availability of less drastic sanctions – ordinarily counsels

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against dismissal. However, the Court attempted to avoid outright dismissal by advising

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Petitioner to file a petition. Petitioner declined to do so, despite being expressly cautioned

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that his failure to do so may result in his claims being time-barred. Thus, the Court has

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explored its only meaningful alternative to dismissal and found that it was not effective. See

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not

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exhaust every sanction short of dismissal before finally dismissing a case, but must explore

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possible and meaningful alternatives.”) (citation omitted). The Court therefore concludes

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that sanctions other than dismissal are no longer appropriate.

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Even the fifth factor, the general policy favoring resolution of cases on the merits,

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favors dismissal in this case because no merits have been brought before the Court. It is the

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responsibility of the moving party to move the case toward disposition on the merits at a

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reasonable pace and to refrain from dilatory and evasive tactics. Morris v. Morgan Stanley

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& Co., 942 F.2d 648, 652 (9th Cir. 1991). In view of Petitioner’s failure to file a petition, it

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does not appear that the Court’s retention of the case would increase the likelihood that the

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matter would be resolved on its merits. Accordingly, the case should be DISMISSED

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without prejudice for failure to prosecute and failure to comply with Court orders.

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CONCLUSION

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For the foregoing reasons, the above captioned matter is dismissed without prejudice;
and Judgment shall be entered accordingly. IT IS SO ORDERED.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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As required by Fed. R. Civ. P. 58(a)(1), final judgment will be issued separately.

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DATED:

April 9, 2018

________________________________
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE

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Presented by:
___________________________________
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE

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