Juan Delgado v. Warden

Filing 6


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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JUAN DELGADO, 12 Petitioner, 13 14 15 v. WARDEN, Respondent. 16 17 ) Case No. CV 20-8332-PA (JPR) ) ) ) ORDER SUMMARILY DISMISSING HABEAS ) PETITION ) ) ) ) ) On September 10, 2020, Petitioner filed an untitled document 18 that appeared to challenge one or more criminal convictions from 19 a decade or so ago. Because the “Petition” was not submitted on 20 either the national form appended to the Habeas Rules or the 21 habeas form approved and supplied by the Central District of 22 California, see R. 2(d), Rs. Governing § 2254 Cases in U.S. Dist. 23 Cts. (authorizing district court to require by local rule that 24 habeas petitions be filed in form prescribed by rule); see also 25 C.D. Cal. R. 83-16.1, the Magistrate Judge on September 17 26 dismissed the Petition with leave to amend. She instructed 27 Petitioner to file an amended petition on the required form, 28 which she directed the Clerk to provide to him, no later than 1 1 October 17 and warned him that if he did not his Petition could 2 be dismissed for failure to prosecute. To date he has neither 3 filed an amended petition nor requested more time to do so. 4 Courts may dismiss lawsuits that are not diligently 5 prosecuted. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); 6 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam). 7 In determining whether to dismiss a pro se petitioner’s action 8 for failure to prosecute, a court must consider (1) the public’s 9 interest in expeditious resolution of litigation, (2) the court’s 10 need to manage its docket, (3) the risk of prejudice to the 11 defendants, (4) the public policy favoring disposition of cases 12 on their merits, and (5) the availability of less drastic 13 sanctions. 14 2002). Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. Unreasonable delay creates a rebuttable presumption of 15 prejudice to the opposing party that can be overcome only with an 16 affirmative showing of just cause by the petitioner. In re 17 Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). 18 Here, the first, second, third, and fifth factors militate 19 for dismissal. The Court cannot leave hanging on its docket a 20 case without a viable initial pleading. Indeed, because 21 Petitioner did not use the required Central District form, the 22 Court cannot adequately screen the Petition to determine whether 23 its claims have been exhausted in state court or are timely. 24 It’s not even clear that he was convicted in this district and 25 thus that the Court has jurisdiction to consider the Petition; he 26 states that he is writing to “every federal court building, 27 District Court’s, Circuit Court’s, Supreme Court’s, and available 28 Department’s to look into [his] case.” 2 (Pet. at 2.) Further, 1 Petitioner has not rebutted the presumption of prejudice to 2 Respondent caused by his unreasonable delay. Finally, there does 3 not appear to be any less drastic sanction the Court can take, as 4 Petitioner has not amended the Petition even after being warned 5 that if he didn’t his case might be dismissed. To the extent the 6 prior dismissal with leave to amend does not constitute a 7 “sanction,” see Pagtalunan, 291 F.3d at 643, the Court notes that 8 dismissal without prejudice is a less drastic sanction than with 9 prejudice, which is authorized when a party has failed to 10 diligently prosecute a lawsuit, see id. at 642-43 (affirming 11 dismissal of habeas petition with prejudice for failure to 12 prosecute). Although the fourth factor weighs against dismissal 13 — as it always does — the other factors together outweigh the 14 public’s interest in disposing of the case on its merits. 15 Thus, this action is dismissed without prejudice for the 16 reasons stated in the Magistrate Judge’s September 17, 2020 Order 17 and under the Court’s inherent power to achieve the orderly and 18 expeditious disposition of cases by dismissing them for failure 19 to prosecute.1 20 21 22 LET JUDGMENT BE ENTERED ACCORDINGLY. ED ACCORDINGLY. G DATED: November 16, 2020 23 Presented by: ted PERCY ANDERSON PERCY ANDERSON RC RC DE DE U.S. DISTRICT JUDGE DISTRICT R 24 ___________________________ Jean Rosenbluth 25 U.S. Magistrate Judge 26 27 1 The Court expresses no view on whether any subsequent habeas 28 petition would be timely or otherwise procedurally proper. 3

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