Baumgaertel v. Holland, et al.

Filing 5

ORDER DIRECTING Clerk of Court to Randomly Assign District Judge to Case: (Clerk's Notice: This case has been assigned to District Judge Lawrence J. O'Neill and Magistrate Judge Gary S. Austin); FINDINGS and RECOMMENDATIONS Regarding Petitioner's Failure to Follow Court Orders 2 , 3 & 4 , signed by Magistrate Judge Gary S. Austin on 4/13/2013, referred to Judge O'Neill. Objections to F&R Due Within Fifteen (15) Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID ALLEN BAUMGAERTEL,

1:12-CV-01859 GSA HC

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Petitioner,
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v.

ORDER DIRECTING CLERK OF COURT
TO RANDOMLY ASSIGN DISTRICT
JUDGE TO CASE

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K. HOLLAND,

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Respondent.
___________________________________/

FINDINGS AND RECOMMENDATION
REGARDING PETITIONER’S FAILURE TO
FOLLOW COURT ORDERS
[Doc. #2, 3, 4]

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

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On November 13, 2012, Petitioner filed a petition for writ of habeas corpus. On

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November 15, 2012, the Court ordered Petitioner to complete and return within thirty days a form

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indicating consent or decline to the jurisdiction of the Magistrate Judge. Over thirty days passed and

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Petitioner failed to comply. On January 30, 2013, the Court issued a second order directing

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Petitioner to complete and file a consent/decline form. Petitioner was granted thirty days to comply.

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Again, the deadline passed with no response from Petitioner. Therefore, on March 12, 2013, the

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Court issued an order directing Petitioner to show cause why the petition should not be dismissed for

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failure to comply with a court order. He was granted fifteen days to comply. On March 21, 2013,

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the order was returned by the U.S. Postal Service as “undeliverable - paroled.”

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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 November 13, 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. Finally, a court’s warning to a party that his failure

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to obey the court’s order will result in dismissal satisfies the “consideration of alternatives”

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requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. In this

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case, the Court repeatedly warned Petitioner that dismissal would result from non-compliance with

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the Court's order.

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ORDER

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IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to randomly assign a
District Judge to the case.

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RECOMMENDATION

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IT IS HEREBY RECOMMENDED that this action be DISMISSED for Petitioner's failure to
comply with a court order.

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This Findings and Recommendation is submitted to the assigned District Judge pursuant to

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the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the

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United States District Court, Eastern District of California. Within fifteen (15) days after date of

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service of the Findings and Recommendation, Petitioner may file written objections with the Court.

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Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may

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waive the right to 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

April 13, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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