Wiessmen v. Frauenheim
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Failure to Obey a Court Order; ORDER DIRECTING That Objections be Filed Within Twenty-One; ORDER DIRECTING Clerk of Court to Assign District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 8/13/16. This case has been assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston; The new case number is 1:16-cv-00803-LJO-JLT (HC). (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JONATHAN WIESSMEN,
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Petitioner,
v.
SCOTT FRAUENHEIM, Warden,
Respondent.
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Case No.: 1:16-cv-00803-JLT
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION FOR FAILURE TO
OBEY A COURT ORDER
ORDER DIRECTING THAT OBJECTIONS BE
FILED WITHIN TWENTY-ONE
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE TO CASE
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On June 13, 2016, the Court ordered the petitioner to show cause why the petition should not
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be dismissed because none of the claims in the petition were exhausted in state court. (Doc. 4) The
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Court ordered the Petitioner to file a written response within 30 days. Id. He has not done so.
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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or
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with any order of the Court may be grounds for imposition by the Court of any and all
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sanctions…within the inherent power of the Court.” District Courts have the inherent power to control
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their dockets and “in the exercise of that power, they may impose sanctions including, where
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appropriate…dismissal of a case. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
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court may dismiss an action with prejudice, based on a party’s failure to prosecute an action, failure to
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obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 531
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54 (9th Cir. 1995)(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258,
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1260-1261 (9th Cir. 1992)(dismissal for failure to comply with an order requiring amendment of
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complaint); Carey v. King, 856 F.2d 1439, 1440-1441 (9th Cir. 1988)(dismissal for failure to comply
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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal
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Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal for failure to comply with court order);
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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)(dismissal for lack of prosecution and
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failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, the court must consider
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several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to
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manage its docket; (3) the risk of prejudice to the Respondents; (4) the public policy favoring
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disposition of cases on their merits; and, (5) the availability of less drastic alternatives. Henderson,
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779 F.2d at 1423; Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-1261; Malone, 833 F.2d at 130;
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-1424.
Here, the Court finds that the public’s interest in expeditiously resolving this litigation and the
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Court’s interest in managing the docket weigh in favor of dismissal, as this case has been pending
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since June 10, 2016. The third factor, risk of prejudice to Respondent, 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 factor --
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public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in
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favor of dismissal discussed herein. Finally, a court’s warning to a party that failure to obey the
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court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik,
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963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order dated ***,
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2014, expressly stated: “Petitioner is forewarned that his failure to comply with this order or his failure
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to show exhaustion will result in a recommendation that the Petition be dismissed pursuant to Local
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Rule 110.” (Doc. 4, p. 4). This admonition was written in bold and underlined for emphasis. Thus,
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Petitioner had adequate warning that dismissal would result from his noncompliance with the Court’s
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order.
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ORDER
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Accordingly, the Clerk of the Court is DIRECTED to assign a United States District Judge to
this case.
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RECOMMENDATION
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For the foregoing reasons, the Court RECOMMENDS that the instant petition for writ of
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habeas corpus (Doc. 1), be DISMISSED for failure to obey the Court’s orders.
This Findings and Recommendation is submitted to the United States District Court Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
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Rules of Practice for the United States District Court, Eastern District of California. Within 21 days
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after being served with a copy of this Findings and Recommendation, any party may file written
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objections with the Court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be
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served and filed within 10 days (plus three days if served by mail) 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 Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
August 13, 2016
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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