Hairston v Oglesby et al

Filing 13

FINDINGS and RECOMMENDATION to Dismiss Petition 1 , signed by Magistrate Judge Jennifer L. Thurston on 1/17/2017: 21-Day Objection Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBEY HAIRSTON,
Petitioner,

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v.
JUDGE OGLESBY, et al.,
Respondents.

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Case No.: 1:16-cv-01547-LJO-JLT (HC)
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION
[TWENTY-ONE DAY DEADLINE]

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On December 5, 2016, the Court conducted a preliminary review of the petition. The Court

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determined that Petitioner had failed to state a claim, failed to demonstrate exhaustion of state

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remedies, and failed to name a proper respondent. The petition was dismissed and Petitioner was

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directed to file an amended petition within thirty days. Over thirty days have passed and Petitioner has

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failed to comply. Therefore, the Court will recommend the action be DISMISSED.

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DISCUSSION
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, 53-

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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).

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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. Ghazali, 46

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F.3d at 53; Ferdik, 963 F.2d at 1260-1261.

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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 August 4, 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. The Court’s order dated December 5, 2016, expressly stated: “Petitioner is

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forewarned that his failure to comply with this Order may result in an Order of Dismissal or a

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Recommendation that the petition be dismissed pursuant to Local Rule 110.” (Doc. 11, p. 5)

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(emphasis in original). Thus, Petitioner had adequate warning that dismissal would result from his

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noncompliance with the Court’s order.

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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 and failure to prosecute.

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This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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

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Within twenty-one days after being served with a copy, Petitioner may file written objections

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with the Court. 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 waive

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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.
Dated:

January 17, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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