Gulbronson v. Verderosa

Filing 16

ORDER signed by Magistrate Judge Craig M. Kellison on 10/12/2016 DISMISSING this case for failure to prosecute and failure to comply with court rules and orders; and the Clerk shall close this case. CASE CLOSED.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC CONRAD GULBRONSON,

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Petitioner,

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No. 2:15-cv-0520-CMK-P

vs.

ORDER

KAMALA D. HARRIS,

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Respondent.

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/

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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. Petitioner has consented to Magistrate Judge

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jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the

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action.

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On May 4, 2016, the court dismissed petitioner’s amended petition and directed

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petitioner to file a second amended petition within 30 days. Petitioner was warned that failure to

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file an amended petition may result in dismissal of this action for lack of prosecution and failure

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to comply with court rules and orders. See Local Rule 110. Petitioner failed to comply, and on

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August 2, 2016, the court issued an order for plaintiff to show cause why this action should not

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be dismissed for failure to file his amended petition. To date, no response has been received.
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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; (3)

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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 failure to file an

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amended petition as directed, and failure to respond to the court’s order to show cause, the court

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finds that dismissal of this action is appropriate.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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This case is dismissed for petitioner’s failure to prosecute and failure to

comply with court rules and orders; and
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The Clerk of the Court is directed to close this case.

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DATED: October 12, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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