Starr et al v. County of Yolo Superior Court State of California et al

Filing 45

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge Yvonne Gonzalez Rogers on 8/29/14. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/29/2014)

1

IN THE UNITED STATES DISTRICT COURT

2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4

7
8

ORDER OF DISMISSAL

Petitioner,

5
6

No. C 14-0318 YGR (PR)

ROBIN GILLEN STARR,

v.
YOLO COUNTY SUPERIOR
COURT, et al.,
Respondents.

/

9
United States District Court
For the Northern District of California

10

On January 22, 2014, Petitioner Robin Gillen Starr, a prisoner at Salinas Valley State Prison

11

("SVSP"), filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 on

12

behalf of himself and other prisoners.

13

Also on January 22, 2104, the Clerk of the Court sent Petitioner a notice directing him to pay

14

the filing fee or to file a completed in forma pauperis ("IFP") application. The Court cannot conduct

15

an initial review of this matter until Petitioner has either paid the filing fee or completed an IFP

16

application. See 28 U.S.C. § 1915(a) (a party is permitted to file a civil action in federal court

17

without prepayment of fees or security if he makes affidavit that he is unable to pay such fees or give

18

security therefor). On February 3, 2014, Petitioner filed a motion leave to proceed IFP; however, he

19

did not file a prisoner trust account statement showing transactions for the last six months or a

20

Certificate of Funds that was signed by an authorized officer at the prison. Dkt. 10. Instead, the

21

record shows that Petitioner submitted a Certificate of Funds; however, he signed it -- posing as an

22

authorized officer at SVSP. Id. at 5.

23
24

On February 25, 2014, Petitioner filed his prisoner trust account statement in support of his
IFP application. Dkt. 15.

25

On February 27, 2014, the Clerk sent Petitioner a notice directing him to pay the filing fee or

26

to file a proper Certificate of Funds. The Clerk provided Petitioner with another copy of the correct

27

IFP application form, along with a return envelope, instructions, and a notification that the case

28

would be dismissed if he failed to pay the fee or file the requisite document within twenty-eight

1

days. All the aforementioned documents were mailed to Petitioner at SVSP. The Court notes that

2

the Clerk's February 27, 2014 notice was not returned as undeliverable; therefore, the Court assumes

3

Petitioner received that notice relating to filing a proper Certificate of Funds, which was due on

4

March 27, 2014.

5

The March 27, 2014 deadline passed, and Petitioner did not file a proper Certificate of

6

Funds.

7

Petitioner a second notice directing him to pay the filing fee or to file a proper Certificate of Funds.

8

The Clerk sent the same forms mentioned above to Petitioner at SVSP.

9

Out of an abundance of caution, on April 23, 2014, the Clerk attempted to send

On April 28, 2014, which was almost a month after the March 27, 2014 deadline listed on the

United States District Court
For the Northern District of California

10

Clerk's February 27, 2014 Notice, Petitioner submitted a seven-page document that was docketed as

11

a "Statement," to which he attached another Certificate of Funds. Dkt. 28 at 3. However, this filing

12

was still improper because, again, Petitioner has signed it, posing as an authorized officer at SVSP.

13
14
15

On May 21, 2014, the Clerk's April 23, 2014 notice was returned as undeliverable because
Petitioner "refused" it. Dkt. 29.
In an Order dated July 25, 2014, the Court issued an Order dismissing all other Petitioners'

16

actions except for Petitioner Starr's action. The Court further noted that, in light of Petitioner Starr's

17

inability to file a timely and proper Certificate of Funds as well as his recent acts of refusing mail, it

18

was in the interests of justice and judicial efficiency for it to establish whether Petitioner Starr

19

intended to continue to prosecute this action. The Court specifically stated:

20
21
22
23
24
25
26
27
28

In the instant case, Petitioner [Starr] originally received notice of the
improper Certificate of Funds in the Clerk's February 27, 2014 notice. This notice
was not returned undeliverable. In this notice, the Clerk afforded Petitioner prior
notice of dismissal within twenty-eight days if he failed to comply. Dkt. 16 at 1.
Indeed, Petitioner has failed to comply because he did not file a timely and proper
Certificate of Funds by the March 27, 2014 deadline. Instead, as explained above,
he filed a late Certificate of Funds, which was also improper because he signed it
posing as an authorized SVSP officer. On March 5, 2014, May 21, 2104 and July
7, 2014, mail sent to Petitioner was returned as undeliverable with the notation:
"Returned to Sender -- Inmate Refused," as well as additional handwritten notations
stating, "Refused."
Dkt. 39 at 4. The aforementioned Order was then mailed to Petitioner at SVSP.
On August 6, 2014, the Court's July 25, 2014 Order was returned as undeliverable because
Petitioner "refused" it. Dkt. 42.
2

1

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may sua sponte dismiss an

2

action for failure to prosecute or to comply with a court order. See Link v. Wabash R.R., 370 U.S.

3

626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). But such a dismissal should

4

only be ordered when the failure to comply is unreasonable. See id. A district court should afford

5

the litigant prior notice of its intention to dismiss. See Malone v. United States Postal Serv., 833

6

F.2d 128, 133 (9th Cir. 1987). In addition, the court should consider five factors before dismissing

7

an action under Rule 41(b): (1) the public interest in the expeditious resolution of the litigation:

8

(2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the

9

availability of less drastic sanctions; and (5) the public policy favoring the disposition of actions on

United States District Court
For the Northern District of California

10

their merits. See Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987).

11

Here, the first three factors, above, weigh in favor of dismissal in light of the fact that

12

Petitioner has refused multiple documents -- all these documents were pertinent and important to the

13

instant matter, especially the Court's July 25, 2014 Order. The fourth factor also weighs in favor of

14

dismissal because less drastic sanctions would have little impact in light of Petitioner's apparent lack

15

of interest in this case. Although the fifth factor appears to weigh against dismissal, dismissal seems

16

appropriate in light of the other four factors. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir.

17

2002) (finding district court did not abuse its discretion in dismissing petition with prejudice where

18

three of the five factors weighed in favor of dismissal).

19

Notwithstanding the Court's analysis above, it is important to note that Petitioner did not

20

receive its July 25, 2014 Order; therefore, he essentially has not had any notice of the Court's

21

intention to dismiss this action, as required by the Ninth Circuit. See Malone, 833 F.2d at 133. In

22

any event, the Court notes that Petitioner still has not submitted a timely and proper Certificate of

23

Funds; therefore, this action shall be dismissed for IFP deficiency. It is important to note that

24

Petitioner has had a previous action dismissed for similar reasons. See Starr v. Reisig, Case No. CIV

25

S-11-3038 GGH P (E.D. Cal. Mar. 23, 2012) (dismissed for IFP deficiency after being given three

26

opportunities to do so).

27
28

In light of the foregoing, and even though the Court finds that this action could be dismissed
for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b), the Court DISMISSES
3

1
2
3
4
5

this action for IFP deficiency. Accordingly,
IT IS HEREBY ORDERED THAT this action is DISMISSED WITHOUT PREJUDICE.
The Clerk shall enter judgment, terminate all pending motions and close the case.
IT IS SO ORDERED.
DATED:

August 29, 2014
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
P:\PRO-SE\YGR\HC.14\Starr0318.DISIFP.wpd

4