James G. Miller v. Scott Kernan

Filing 7

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Andrew J. Guilford. 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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JAMES G. MILLER, ) ) Petitioner, ) ) v. ) ) SCOTT KERNAN, Secretary CDC&R,) et al., ) ) Respondents. ) ______________________________) NO. ED CV 17-2482-AG(E) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 17 18 This Report and Recommendation is submitted to the Honorable 19 George H. Wu, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District 21 Court for the Central District of California. 22 PROCEEDINGS 23 24 25 On December 12, 2017, Petitioner filed a “Petition for Writ of 26 Habeas Corpus.” 27 “Order to Show Cause” (“the OSC”). 28 “show cause in writing, within fourteen (14) days of the date of this On December 19, 2017, the Magistrate Judge filed an The OSC ordered that Petitioner 1 Order, why the Petition should not be denied and dismissed as moot.” 2 The OSC cautioned Petitioner that “[f]ailure to file a timely response 3 to this Order to Show Cause may result in the denial and dismissal of 4 the Petition.” 5 response to the OSC. Nevertheless, Petitioner failed to file a timely 6 DISCUSSION 7 8 9 The Petition should be denied and dismissed without prejudice. 10 Petitioner has failed to file a timely response to the OSC. The Court 11 has inherent power to achieve the orderly and expeditious disposition 12 of cases by dismissing actions for failure to prosecute. 13 Wabash R.R., 370 U.S. 626, 629-30 (1962). 14 the factors recited in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th 15 Cir.), cert. denied, 506 U.S. 915 (1992), and has concluded that 16 dismissal without prejudice is appropriate. 17 drastic alternative would not be effective under the circumstances of 18 this case. Link v. The Court has considered In particular, any less 19 RECOMMENDATION 20 21 22 For all of the foregoing reasons, IT IS RECOMMENDED that the 23 Court issue an Order: (1) accepting and adopting this Report and 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 Recommendation; and (2) directing that Judgment be entered denying and 2 dismissing the Petition without prejudice. 3 4 DATED: January 8, 2018. 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

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?