Panares, Jr. v. Benov

Filing 6

ORDER DISMISSING PETITION Due to Petitioner's Failure to Follow a Court Order, signed by Magistrate Judge Michael J. Seng on 8/30/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ALEJANDRO PANARES, JR.,
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Petitioner,
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v.
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MICHAEL L. BENOV, Warden,
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Respondent.
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________________________________)

1:11-cv-00051 MJS HC
ORDER DISMISSING PETITION DUE TO
PETITIONER’S FAILURE TO FOLLOW A
COURT ORDER
[Doc. 5]

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.

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On January 11, 2011, Petitioner filed a petition for writ of habeas corpus. On January

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13, 2011, the Court issued an order requiring Petitioner to consent to Magistrate Judge

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jurisdiction or request reassignment to a District Court Judge within thirty (30) days. After thirty

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days passed without a response, the Court issued a second order regarding consent or

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reassignment on February 28, 2011. Petitioner again failed to respond, and a third order

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regarding consent or reassignment was issued on April 18, 2011. On July 28, 2011, the Court

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issued a order to show cause why the petition should not be dismissed due to Petitioner's

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failure to comply with its orders. (Order to Show Cause, ECF No. 5.) Petitioner was ordered

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to respond to the order to show cause within twenty (20) days of service. Over twenty (20)

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days have passed, and Petitioner has not responded to the order to show cause.

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In determining whether to dismiss an action for lack of prosecution, the court must

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consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the respondents; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423-24 (9th Cir. 1986); Carey v. King,

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856 F.2d 1439, 1440-41 (9th Cir. 1988).

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expeditiously resolving this litigation and the Court’s interest in managing the docket weigh in

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favor of dismissal as this case has been pending since January 11, 2011. The Court cannot

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hold this case in abeyance indefinitely based on Petitioner’s failure to respond to four separate

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orders of the court. The third factor, risk of prejudice to respondents, also weighs in favor of

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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in

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prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth

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factor, public policy favoring disposition of cases on their merits, is outweighed by the factors

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in favor of dismissal discussed herein. Finally, given Petitioner’s failure to communicate with

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the Court despite several orders requiring him to do so, no lesser sanction is feasible.
Petitioner has failed to prosecute the present matter by failing to follow a court order.

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The Court finds that the public’s interest in

Therefore, the petition must be dismissed.
ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Petition for Writ of Habeas Corpus is DISMISSED without prejudice; and

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2. The Clerk of Court is DIRECTED to enter judgment.

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IT IS SO ORDERED.

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Dated:
ci4d6

August 30, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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