Kapononuiahopili v. Copenhaver

Filing 15

FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition Due to Petitioner's Failure to Follow a Court Order signed by Magistrate Judge Michael J. Seng on 12/17/2013. Referred to Judge Anthony W. Ishii. Objections to F&R due by 1/21/2014. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:13-cv-01508 AWI MJS HC
HENRY KAPONONUIAHOPILI,

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v.

FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS PETITION DUE TO
PETITIONER’S FAILURE TO FOLLOW A
COURT ORDER
[Doc. 8]

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PAUL COPENHAVER,
Respondent.

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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 September 12, 2013, the Court served new case documents and an order

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regarding consent to Magistrate Judge jurisdiction on Petitioner. (ECF No. 3.) On

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October 2, 2013, the order served on Petitioner was returned by the U.S. Postal Service

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as undeliverable.

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On October 9, 2013, the Court ordered Petitioner to show cause why the petition

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should not be dismissed due to Petitioner's failure to inform the Court of his current

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address. Petitioner was given sixty-three (63) days to inform the court of his new

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address. (Order to Show Cause, ECF No. 8.) Petitioner has filed a decline to proceed

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before the Magistrate Judge form and a motion to proceed in forma pauperis with the
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Court, but he has not informed the Court of his current address or shown cause why the

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case should not be dismissed as directed by the order to show cause.

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Pursuant to Local Rule 183(b), a party appearing in propria persona is required to

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keep the Court apprised of his or her current address at all times. Local Rule 183(b)

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provides, in pertinent part:

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If mail directed to a plaintiff in propria persona by the Clerk is returned by
the U.S. Postal Service, and if such plaintiff fails to notify the Court and
opposing parties within sixty-three (63) days thereafter of a current
address, the Court may dismiss the action without prejudice for failure to
prosecute.

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In the instant case, over sixty-three (63) days have passed since Petitioner's mail

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was returned and he has not notified the Court of a current address.

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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)

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

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

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

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988). The Court finds that the public’s

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

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docket weigh in favor of dismissal as this case has been pending since September 12,

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2013. The Court cannot hold this case in abeyance indefinitely based on Petitioner’s

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failure to notify the Court of his address. Furthermore, in failing to comply with a simple

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order of the Court, the Court is concerned that if the case is not dismissed, Petitioner

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shall not comply with further orders of the Court. The third factor, risk of prejudice to

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respondents, also weighs in favor of dismissal, since a presumption of injury arises from

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the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West,

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542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of

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cases on their merits, is greatly outweighed by the factors in favor of dismissal discussed

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herein. Finally, given the Court’s inability to properly communicate with Petitioner based

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on Petitioner’s failure to keep the Court apprised of his current address, no lesser
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sanction is feasible.

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Accordingly, it is recommended that this action be dismissed without prejudice for

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Petitioner's failure to prosecute. Should Petitioner respond and provide the Court of his

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current address, the Court shall vacate the order to show cause and review the merits of

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his petition.

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RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be

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GRANTED and the habeas corpus petition be DISMISSED without prejudice for

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Petitioner's failure to prosecute.

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This Findings and Recommendation is submitted to the assigned United States

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

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

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District of California. Within thirty (30) days after the date of service of this Findings and

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Recommendation, any party may file written objections with the Court and serve a copy

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on all parties. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Replies to the Objections shall be served and filed

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within fourteen (14) days after service of the Objections.

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Recommendation will then be submitted to the District Court for review of the Magistrate

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Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The parties are advised that failure

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to file objections within the specified time may waive the right to appeal the Order of the

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District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

The Finding and

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IT IS SO ORDERED.

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Dated:

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December 17, 2013

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

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