(HC) Fountain v. Director

Filing 7

ORDER to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition, signed by Magistrate Judge Helena M. Barch-Kuchta on 1/19/2023. Referred to Judge de Alba; Objections to F&R due within fourteen (14) days. (Rivera, O)

Case 1:22-cv-01231-ADA-HBK Document 7 Filed 01/19/23 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNEST ROGER FOUNTAIN, JR.,

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Petitioner,

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v.

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Case No. 1:22-cv-01231-HBK (HC)
ORDER TO ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION1

DIRECTOR,
(Doc. No. 1)

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Respondent.
FOURTEEN-DAY OBJECTION PERIOD

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Petitioner Ernest Roger Fountain, Jr., a state prisoner, initiated this action by filing a pro

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se petition for writ of habeas corpus under 28 U.S.C. § 2254 on September 27, 2022. (Doc. No.

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1, “Petition”). On December 7, 2022, the Court conducted a preliminary review of the Petition

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and determined that the Petition failed to name a proper respondent and failed to state a

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cognizable federal habeas claim. (Doc. No. 5). Specifically, the Court noted that Petitioner failed

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to specify any facts to support the conclusory violations asserted in his Petition, as required under

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Rule 2(c) of the Rules Governing Section 2254 Cases. (Id. at 3). The Court afforded Petitioner

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an opportunity to file an amended petition within thirty days. Over thirty days have passed, and

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Petitioner did not file an amended petition. The Court duly warned Petitioner that if he failed to

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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
(E.D. Cal. 2022).

Case 1:22-cv-01231-ADA-HBK Document 7 Filed 01/19/23 Page 2 of 4
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file an amended petition, the undersigned would recommend that the Petition be dismissed for the

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above reasons and/or for his failure to prosecute this action. Therefore, the undersigned

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recommends the district court dismiss this action without prejudice.

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I. APPPLICABLE LAW
Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action

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when a litigant fails to prosecute an action or fails to comply with other Rules or with a court

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order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889

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(9th Cir. 2019) (citations omitted). Local Rule 110 similarly permits the court to impose

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sanctions on a party who fails to comply with the court’s Rules or any order of the court.

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Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the

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public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3)

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the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) the

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availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting that

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these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis added);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors and

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independently reviewing the record because district court did not make finding as to each); but

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see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but

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noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff

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did not amend caption to remove “et al” as the court directed and reiterating that an explicit

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finding of each factor is not required by the district court).

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II. ANALYSIS
The undersigned considers the above-stated factors and concludes the majority of the

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above factors favor dismissal in this case. The expeditious resolution of litigation is deemed to be

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in the public interest. Yourish v. California Amplifier, 191 F.2d 983, 990-91 (9th Cir. 1999).

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Turning to the second factor, the court’s need to efficiently manage its docket cannot be

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overstated. This court has “one of the heaviest caseloads in the nation,” and due to the delay in

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filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, it operates
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under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial

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Emergency in the Eastern District of California. The court’s time is better spent on its other

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matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial

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courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and

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requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J.,

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concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition

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where petitioner failed to timely respond to court order and noting “the weight of the docket-

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managing factor depends upon the size and load of the docket, and those in the best position to

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know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk

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that evidence will become stale or witnesses’ memories will fade or be unavailable and can

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prejudice a respondent. See Sibron v. New York, 392 U.S. 40, 57 (1968).

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As to the fourth factor, a preference to rule on the merits usually weighs against dismissal

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because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643

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(9th Cir. 2002). Here, the Petition is facially deficient. First, the Petition failed to name a proper

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respondent, identifying “Director” as Respondent. A petitioner seeking habeas corpus relief must

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name the officer having custody of him as the respondent to the petition. Rule 2(a) of the Rules

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Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v.

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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner’s failure to name a proper

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respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at

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360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see also Billiteri v.

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United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). Further, as noted in the Court’s

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previous Order, the Petition fails to identify any facts to support any of the grounds for relief

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asserted in the Petition. (See Doc. No. 5 at 3). Thus, Petitioner has not presented a matter on the

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merits for the Court to consider. Additionally, the instant dismissal is a dismissal without

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prejudice, which is a lesser sanction than a dismissal with prejudice. And finally, a court’s

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warning to a party that failure to obey the court’s order will result in dismissal satisfies the

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“consideration of alternative” requirement. See Ferdik, 963 F.2d at 1262. The Court’s previous

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Order expressly warned Petitioner that if he failed to respond, the undersigned would recommend
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the district court dismiss the Petition. (Doc. No. 5 at 4, ¶4). Thus, Petitioner had adequate

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warning that dismissal would result from his noncompliance with the Court’s order.

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After considering the factors set forth supra and binding case law, the undersigned
recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110.

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Accordingly, it is ORDERED:

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The Clerk of Court is directed to assign a district judge to this case.

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It is further RECOMMENDED:

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1. This case be dismissed without prejudice for failure to prosecute and/or comply
with a court order.

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2. The Clerk of Court be directed to terminate any pending motions/deadlines and
close this case.

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NOTICE TO PARTIES

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These findings and recommendations will be submitted to the United States district judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

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days after being served with these findings and recommendations, a party may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Dated:

January 19, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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