Mendoza v. The People of the State of California
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/15/2011 recommending that this action be dismissed without prejudice, for lack of prosecution and failure to comply with court rules and orders; referred to Judge Garland E. Burrell; Objections due within 14 daysafter being served with these findings and recommendations. (Duong, D)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CARLOS MENDOZA,
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No. CIV S-11-1495-GEB-CMK-P
Petitioner,
vs.
FINDINGS AND RECOMMENDATIONS
THE PEOPLE OF THE STATE OF
CALIFORNIA,
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Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. On June 7, 2011, the court dismissed petitioner’s
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petition and directed petitioner to file an amended petition within 30 days naming the correct
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respondent. Petitioner filed an amended petition on July 15, 2011, which continued to name the
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incorrect respondent. On July 21, 2011, the court issued a second order directing petitioner to
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file an amended petition naming the correct respondent. On August 5, 2011, petitioner filed a
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second amended petition, again failing to name the correct respondent. Petitioner was warned
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that failure to comply with the court’s orders may result in dismissal of this action for lack of
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prosecution. See Local Rule 110.
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The court must weigh five factors before imposing the harsh sanction of
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dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.
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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's
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interest in expeditious resolution of litigation; (2) the court's need to manage its own docket;
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(3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on
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their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,
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46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an
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appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.
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See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is
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appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,
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1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to
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comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,
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1260-61 (9th Cir. 1992).
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Having considered these factors, and in light of petitioner’s inability or refusal to
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file an amended petition naming the correct respondent as directed, the court finds that dismissal
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of this action is appropriate.
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Based on the foregoing, the undersigned recommends that this action be
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dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and
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orders.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: August 15, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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