Pombo v. Frauenheim

Filing 6

FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Failure to Comply; ORDER Directing Clerk of Court to Assign District Judge signed by Magistrate Judge Jennifer L. Thurston on 09/19/2016. Referred to Judge Ishii; Objections to F&R due by 10/13/2016. New Case Number is 1:16-cv-1159 AWI-JLT.(Flores, E)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN STACEY POMBO, 12 Petitioner, 13 14 v. SCOTT FRAUENHEIM, Warden, 15 No. 1:16-cv-01159-JLT (HC) FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION FOR FAILURE TO COMPLY ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE Respondent. [TWENTY-ONE DAY DEADLINE] 16 Petitioner has failed to file an amended petition after the Court dismissed his initial 17 18 petition and directed him to file an amended petition. Therefore, the Court will recommend that 19 the action be DISMISSED for failure to comply. 20 I. Procedural History On August 8, 2016, Petitioner filed a habeas petition in this Court. After conducting a 21 22 preliminary review of the petition, the Court found that Petitioner failed to demonstrate 23 exhaustion of his state remedies and failed to sign the petition under penalty of perjury. On 24 August 11, 2016, the Court issued an order requiring Petitioner to amend his petition within thirty 25 days of the date of service of the order. (Doc. No. 5.) More than thirty days have passed, and 26 Petitioner has failed to comply with or otherwise respond to the Court’s order. 27 II. 28 Dismissal for Failure to Comply with Court Order Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 1 1 or with any order of the Court may be grounds for imposition by the Court of any and all 2 sanctions…within the inherent power of the Court.” District Courts have the inherent power to 3 control their dockets and “in the exercise of that power, they may impose sanctions including, 4 where appropriate…dismissal of a case. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th 5 Cir. 1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute 6 an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 7 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance with local rule); Ferdik v. 8 Bonzelet, 963 F.2d 1258, 1260-1261 (9th Cir. 1992)(dismissal for failure to comply with an order 9 requiring amendment of complaint). 10 In determining whether to dismiss an action for lack of prosecution, the court must 11 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 12 court’s need to manage its docket; (3) the risk of prejudice to the Respondents; (4) the public 13 policy favoring disposition of cases on their merits; and, (5) the availability of less drastic 14 alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-1261. Here, the Court finds that the public’s interest in expeditiously resolving this litigation and 15 16 the Court’s interest in managing the docket weigh in favor of dismissal, as this case has been 17 pending since August 8, 2016. The third factor, risk of prejudice to Respondent, also weighs in 18 favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 19 in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 20 factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed by the 21 factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that failure to 22 obey the court’s order will result in dismissal satisfies the “consideration of alternatives” 23 requirement. Ferdik, 963 F.2d at 1262. The Court’s order dated August 11, 2016, expressly 24 stated: “Petitioner is forewarned that failure to follow this Order may result in an Order of 25 Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule 110.” 26 (Doc. No. 5, p. 3). Thus, Petitioner had adequate warning that dismissal would result from his 27 noncompliance with the Court’s order. 28 /// 2 1 2 3 ORDER Accordingly, the Clerk of the Court is DIRECTED to assign a United States District Judge to this case. 4 5 6 7 RECOMMENDATION For the foregoing reasons, the Court RECOMMENDS that the instant petition for writ of habeas corpus (Doc. No. 1), be DISMISSED for failure to obey the Court’s order. This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 9 Local Rules of Practice for the United States District Court, Eastern District of California. 10 Within 21 days after being served with a copy of this Findings and Recommendation, any party 11 may file written objections with the Court and serve a copy on all parties. Such a document 12 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies 13 to the Objections shall be served and filed within 10 days (plus three days if served by mail) after 14 service of the Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 15 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the 16 specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 17 951 F.2d 1153 (9th Cir. 1991). 18 19 20 IT IS SO ORDERED. Dated: September 19, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?