Anderson v. Brown et al

Filing 7

ORDER TO SHOW CAUSE RE DISMISSAL. Show Cause Response due by 5/31/2017. Signed by Judge Saundra B Armstrong on 5/3/17. (dtmS, COURT STAFF) (Filed on 5/3/2017) (Additional attachment(s) added on 5/3/2017: # 1 Certificate/Proof of Service) (dtmS, COURT STAFF).

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 7 DALE THOMAS ANDERSON, Petitioner, 8 9 10 Case No: C 10-2020 SBA (PR) ORDER TO SHOW CAUSE RE DISMISSAL vs. EDMUND G. BROWN, JR., et al., 11 Respondents. 12 13 14 By Order dated December 9, 2010, the Court denied Respondent’s motion to 15 dismiss, and granted Petitioner’s request to stay the action so that he could return to state 16 court to exhaust his unexhausted claims. Dkt. 6 at 2. The Order stated, inter alia, that: 17 “Respondent’s motion to dismiss the petition for failure to exhaust state court remedies 18 (docket no. 4) is DENIED without prejudice to refiling if Petitioner fails diligently to 19 pursue exhaustion in state court of his unexhausted claims.” Id. 20 The Court administratively closed the action during the pendency of the stay. Id. at 21 3. In addition, the Court directed that: “[Petitioner] must file quarterly reports describing 22 the progress of his state court proceedings, commencing thirty (30) days from the date of 23 this Order and continuing every ninety (90) days thereafter until his state court proceedings 24 are terminated. He must also attach to his status reports copies of the cover page of any 25 document that he files with or receives from the California Supreme Court relating to the 26 claims.” Id. at 2-3 (emphasis in original). In violation of that Order, Petitioner has failed to 27 file any status reports. The Court has reviewed the California Court’s website, but has been 28 unable to locate any information regarding whether Petitioner made any further efforts to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 exhaust his unexhausted claims. 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 R.R. Co., 370 U.S. 626, 629-30 (1962); Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002) (affirming dismissal of habeas petition because of petitioner’s disobedience with orders setting filing deadlines); see also Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.1995) (affirming dismissal of prisoner’s civil rights complaint for failure to file opposition to motion to dismiss as required by local rule). In determining whether to dismiss a claim for disobedience with a court order or the failure to prosecute pursuant to Rule 41(b), the court must weigh the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Pagtalunan, 291 F.3d at 642; Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Accordingly, IT IS HEREBY ORDERED THAT within twenty-eight (28) days of the date this Order is filed, each party shall file a Certificate of Counsel to explain why the case should or should not be dismissed. The Certificate shall set forth the nature of the cause, its present status, the reason why a final determination of the action has not been sought or the action otherwise terminated, any basis for opposing dismissal and its expected course if not dismissed. FAILURE TO FULLY COMPLY WITH THIS ORDER WILL BE DEEMED SUFFICIENT GROUNDS TO DISMISS THE ACTION, WITHOUT FURTHER NOTICE. IT IS SO ORDERED. Dated: 5/3/17 ______________________________ SAUNDRA BROWN ARMSTRONG Senior United States District Judge 25 26 27 28 -2-

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