Zhang Fan v. United States Department of Homeland Security et al

Filing 10

ORDER: DISMISSING PETITION WITHOUT PREJUDICE by Judge John F. Walter, re NOTICE OF MOTION AND MOTION to Dismiss Case 6 , Order to Show Cause, 9 . 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

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ZHANG FAN,

) NO. EDCV 17-2124-JFW (KS)
)
Petitioner,
)
v.
) ORDER: DISMISSING PETITION
) WITHOUT PREJUDICE
UNITED STATES DEPARTMENT )
OF HOMELAND SECURITY, et al., )
)
Respondent.
_________________________________ )

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INTRODUCTION

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On October 16, 2017, Petitioner, an immigration detainee proceeding pro se, filed a

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verified Petition For Writ Of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Petition”) in the

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Central District of California. (Dkt. No. 1). In the Petition, Petitioner contended that his

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pre-removal detention in California by U.S. Immigration and Customs Enforcement (“ICE”)

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violated federal law and the U.S. Constitution because he had been held for more than six

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months since the issuance of a final order of removal, no special circumstances justify his

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continued detention, and there was no significant likelihood that Petitioner would be

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removed in the reasonably foreseeable future. On December 4, 2017, Respondent filed a

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Motion to Dismiss stating the Petition was premature since the Immigration Court’s order of

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removal of Petitioner was issued on September 14, 2017.

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Respondent requested a continuance of the filing deadline for Petitioner to respond to the

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Motion because Petitioner received it ten days after it was filed. (Dkt. No. 7.) The Court

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granted the request and ordered Petitioner to file an Opposition to the Motion no later than

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January 13, 2018. (Dkt. No. 8.) On January 29, 2018, the Court issued an Order to Show

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Cause why the Petition should not be dismissed for failure to prosecute since Petitioner had

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failed to file an Opposition to the Motion. (Dkt. No. 9.) More than a month has now passed

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since Petitioner’s deadline for responding to the Court’s Order to Show Cause and Petitioner

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has not filed an Opposition to the Motion or communicated with the Court regarding his

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(“Motion”).

(Dkt. No. 6.)

case.

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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

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declined to participate in the litigation concerning his Petition for the past three months, and

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he ignored this Court’s January 29, 2018 Order requiring him to show cause why the Petition

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should be allowed to proceed. Petitioner’s noncompliance with this Court’s Order and his

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failure to communicate with this Court hinders the Court’s ability to move the Petition

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toward disposition. More significantly, it indicates that Petitioner does not intend to litigate

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this action diligently. Accordingly, allowing the Petition to remain on the Court’s docket is

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unlikely to result in its resolution on its merits.

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

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Ninth Circuit has held that prejudice may be presumed from unreasonable delay.

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Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon

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Commc’ns Corp., 589 F.2d 959, 967-68 (9th Cir. 1978). The passage of more than three

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months in this case since Respondent filed the Motion to Dismiss is an unreasonable delay.

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Respondent has actively sought dismissal of this case on the ground that it was filed

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prematurely, and Petitioner has failed to oppose in any way.

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presumption of prejudice can be rebutted by a non-frivolous explanation, Petitioner has not

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provided a non-frivolous explanation and he has not communicated with the Court since he

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filed the Petition. See In re Eisen, 31 F.3d at 1453. Although Petitioner is pro se in this

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matter, that does not excuse his unreasonable delay as he is still subject to federal and local

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rules of procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam), cert.

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denied, 516 U.S. 838 (1995). Many habeas petitions are brought by pro se prisoners who

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comply with filing requirements and deadlines. Because there is unreasonable delay in

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Petitioner’s filing of an Opposition to Respondent’s Motion to Dismiss, prejudice to

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Respondent is presumed and this factor weighs in favor of dismissing this action.

(Dkt. No. 6.)

See

While a

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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 giving

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Petitioner the opportunity to explain why the Petition should be allowed to proceed.

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Petitioner declined to do so, despite being expressly cautioned that his failure to respond

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could result in dismissal. Thus, the Court has explored its only meaningful alternative to

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dismissal and found that it was not effective. See Henderson v. Duncan, 779 F.2d 1421,

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1424 (1986) (“The district court need not exhaust every sanction short of dismissal before

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finally dismissing a case, but must explore possible and meaningful alternatives.”) (citation

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omitted). The Court therefore concludes that sanctions other than dismissal are no longer

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appropriate for the Petition.

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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 an unopposed suggestion that this Petition is premature

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would compel dismissal even if Petitioner’s failure to prosecute would not. Further, 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). Petitioner has not communicated with this Court

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since he filed the Petition. In view of Petitioner’s silence in this action, it does not appear

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that the Court’s retention of the Petition would increase the likelihood that the matter would

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be resolved on its merits.

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prejudice for failure to prosecute.

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Accordingly, the Petition should be DISMISSED without

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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:

March 9, 2018

________________________________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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

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