Shadden v. On Habeas Corpus

Filing 14

ORDER Directing Clerk Of Court To Assign District Judge, FINDINGS And RECOMMENDATIONS Regarding Petitioner's Failure To Follow Court Orders (Docs. # 8 , 10 ), signed by Magistrate Judge Gary S. Austin on 1/7/2013. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/25/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS SHADDEN,

1:12-CV-01455 GSA HC

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Petitioner,
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ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE

v.
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DERRAL G. ADAMS,

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FINDINGS AND RECOMMENDATION
REGARDING PETITIONER’S FAILURE TO
FOLLOW COURT ORDERS
[Docs. #8,10]

Respondent.
___________________________________/

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254.

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On April 10, 2012, Petitioner filed a petition for writ of habeas corpus in the Ninth Circuit

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Court of Appeals. On September 5, 2012, the Ninth Circuit transferred the petition to this Court.

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On September 11, 2012, the Court issued new case documents, and ordered Petitioner to complete

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and file a form indicating consent or decline to the jurisdiction of the magistrate judge. Petitioner

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was granted thirty (30) days to file the completed form. Over thirty (30) days passed, and Petitioner

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failed to comply. On October 29, 2012, the Court issued the order a second time and provided

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Petitioner with another thirty (30) days to comply. Again, thirty (30) days passed with no response

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from Petitioner.

U .S. D istrict C ourt
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DISCUSSION

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Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for imposition by the Court of any and all sanctions

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authorized by statute or Rule or within the inherent power of the Court.@ District courts have the

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inherent power to control their dockets and Ain the exercise of that power, they may impose sanctions

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including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829,

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831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to

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prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g.,

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Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule);

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an

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order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)

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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of

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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

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comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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lack of prosecution and failure to comply with local rules). In determining whether to dismiss an

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action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the

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

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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (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. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130;

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.

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In the instant case, the Court finds that the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal because this

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case has been pending in this Court since September 5, 2012. The third factor, risk of prejudice to

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defendants, also weighs in favor of dismissal because a presumption of injury arises from any

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unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.

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1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly

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outweighed by the factors in favor of dismissal.

U .S. D istrict C ourt
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ORDER

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to randomly
assign a district judge to this case.

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RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for

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Petitioner's failure to comply with a court order.

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This Findings and Recommendation is submitted to the district judge assigned to this case,

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United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of California.

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Within fifteen (15) days after service of the Findings and Recommendation, any party may file

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written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the

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objections shall be served and filed within fourteen (14) days after service of the objections. The

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Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

January 7, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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U .S. D istrict C ourt
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