Nguyen v. Tilton
Filing
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ORDER TO SHOW CAUSE re Dismissal. Show Cause Response due by 5/17/2017. Signed by Judge Saundra B Armstrong on 5/3/17. (dtmS, COURT STAFF) (Filed on 5/3/2017)
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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6 SON HOANG NGUYEN,
Petitioner,
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Case No: C 08-03353 SBA
ORDER TO SHOW CAUSE RE
DISMISSAL
vs.
9 JOHN TILTON, Acting Director,
Respondent.
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On September 30, 2011, the Court denied Respondent’s motion to dismiss, and
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granted Petitioner’s request to stay the action so that he could exhaust his Brady claim in
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state court. Dkt. 31 at 5. The Order stated, inter alia, that: “Respondent’s motion to
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dismiss the petition as a mixed petition is DENIED without prejudice to re-filing if Nguyen
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fails to pursue exhaustion of his Brady claim diligently in state court.” Id. at 6.
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The Court administratively closed the action during the pendency of the stay. Id. at
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6. In addition, the Court directed that: “[Petitioner] must file quarterly status reports
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describing the progress of his state court proceedings, commencing forty (45) days from the
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date of this Order and continuing every ninety (90) days thereafter until his state court
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proceedings are terminated. He must also attach to his status reports copies of the cover
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page of any document that he files with or receives from the California Supreme Court
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relating to the claims.” Id. In violation of that Order, Petitioner has failed to file any status
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reports. The Court has reviewed the California Court’s website, but has been unable to
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locate any information regarding whether Petitioner made any further efforts to exhaust his
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Brady claim.
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District courts may dismiss an action based on the failure of a habeas petitioner to
comply with a court order or for lack of prosecution. Fed. R. Civ. P. 41(b); Link v. Wabash
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R.R. Co., 370 U.S. 626, 629-30 (1962); Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir.
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2002) (affirming dismissal of habeas petition because of petitioner’s disobedience with
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orders setting filing deadlines); see also Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.1995)
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(affirming dismissal of prisoner’s civil rights complaint for failure to file opposition to
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motion to dismiss as required by local rule). In determining whether to dismiss a claim for
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disobedience with a court order or the failure to prosecute pursuant to Rule 41(b), the court
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must weigh the following factors: (1) the public’s interest in expeditious resolution of
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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
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availability of less drastic alternatives. Pagtalunan, 291 F.3d at 642; Ferdik v. Bonzelet,
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963 F.2d 1258, 1260-61 (9th Cir. 1992). Accordingly,
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IT IS HEREBY ORDERED THAT, within fourteen (14) days of the date this order
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is filed, each party shall file a Certificate of Counsel to explain why the case should or
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should not be dismissed. The Certificate shall set forth the nature of the cause, its present
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status, the reason why a final determination of the action has not been sought or the action
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otherwise terminated, any basis for opposing dismissal and its expected course if not
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dismissed. FAILURE TO FULLY COMPLY WITH THIS ORDER WILL BE DEEMED
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SUFFICIENT GROUNDS TO DISMISS THE ACTION, WITHOUT FURTHER
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NOTICE.
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IT IS SO ORDERED.
Dated: 5/3/17
______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge
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