(HC) Johnson v. Superior Court of the State of California for Kings County et al
Filing
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FINDINGS and RECOMMENDATIONS to Dimiss the 1 Petition for Failure to Comply signed by Magistrate Judge Jennifer L. Thurston on 11/12/2019. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within Ten (10) Days. Orozco, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Petitioner,
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v.
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SCOTT KERNAN, Secretary of California
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Department of Corrections and Rehabilitation, )
et al.,
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Respondents.
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DERRICK L. JOHNSON,
Case No.: 1:19-cv-00976-LJO-JLT (HC)
FINDINGS AND RECOMMENDATION TO
DISMISS THE PETITION FOR FAILURE TO
COMPLY
[TEN-DAY OBJECTION DEADLINE]
On July 3, 2019, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1.) A
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preliminary screening of the petition revealed that the petition failed to present any cognizable grounds
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for relief or any facts in support. Therefore, on September 24, 2019, the Court dismissed the petition
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and granted Petitioner thirty days to file a first amended petition. (Doc. 10.) More than thirty days
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have passed, and Petitioner has failed to comply. Therefore, the Court will recommend the action be
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DISMISSED.
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DISCUSSION
Local Rule 110 provides that a “[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 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 “in 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, 831
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(9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute
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an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v.
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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.
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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal
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for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);
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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with
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court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of
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prosecution and failure to comply with local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey a court
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order, or failure to comply with local rules, the court must consider several factors: (1) the public’s
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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of
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prejudice to the Respondents; (4) the public policy favoring disposition of cases on their merits; and
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(5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61;
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Malone, 833 F.2d at 130; 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 case
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has been pending since July 3, 2019. The third factor, risk of prejudice to Respondent, also weighs in
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favor of dismissal because a presumption of injury arises from any unreasonable delay in prosecuting
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an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy
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favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal.
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Finally, a court’s warning to a party that failure to obey the court’s order will result in dismissal
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satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262. The Court’s order
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dated September 24, 2019, expressly stated: “Failure to comply with this order will result in dismissal
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of the action.” (Doc. 10 at 3.) Thus, Petitioner had adequate warning that dismissal would result from
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his noncompliance with the Court’s order.
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RECOMMENDATION
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Accordingly, the Court RECOMMENDS that this action be DISMISSED for Petitioner's
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failure to comply with court orders and failure to prosecute.
This Findings and Recommendation is submitted to the assigned District Court Judge, pursuant
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to 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 ten days after service of the
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Findings and Recommendation, Petitioner may file written objections with the Court. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”
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The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C).
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Petitioner is advised that failure to file objections within the specified time may waive the right to
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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:
November 12, 2019
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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