Russell v. Salmonson et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Petition 1 is DISMISSED without prejudice. A certificate of appealability is DENIED. Signed by Judge Brian Morris on 6/26/2018. Mailed to Russell (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
CLAYTON RUSSELL,
CV-18-19-BU-BMM-JCL
Petitioner,
vs.
ORDER
JAMES SALMONSON, ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
Petitioner Clayton Russell (“Russell”) filed an application for writ of habeas
corpus under 28 U.S.C. § 2254 on March 2, 2018. Russell is a state prisoner
proceeding pro se. United States Magistrate Judge Jeremiah C. Lynch entered
Findings and Recommendations in this matter on May 7, 2018. (Doc. 4.)
Neither party filed objections. When a party makes no objections, the Court
need not review de novo the proposed Findings and Recommendations. Thomas v.
Arn, 474 U.S. 140, 149-52 (1986). This Court will review Judge Lynch’s Findings
and Recommendations, however, for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
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Russell’s petition does not specify the nature of his claims or the factual
basis underlying them. (Doc. 3 at 1.) Judge Lynch directed Russell to provide an
Amended Petition and a standard application to proceed in forma pauperis by April
28, 2018. Id. at 3. Russell did not timely respond to the Court’s order.
I.
28 U.S.C. § 2254 Petition
Judge Lynch determined that Federal Rule of Civil Procedure 41(b)
authorizes the Court to dismiss an action if the plaintiff fails to prosecute the action
and/or fails to comply with the Court’s order. (Doc. 4 at 2.) The Court weighs five
factors in determining whether Russell’s failure to respond and prosecute warrants
dismissal. The Court must weigh the following: (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 sanctions. Carey v.
King, 856 F.2d 1439, 1440 (9th Cir. 1988). Judge Lynch determined after
examining the five factors that this matter should be dismissed for failure to
prosecute and/or for failure to comply with the Court’s order. (Doc. 4 at 2.)
II.
Certificate of Appealability
Judge Lynch determined that a certificate of appealability should be denied.
Id. at 3. “The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rule 11(a), Rules Governing § 2254
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Proceedings. A certificate of appealability should issue as to those claims on which
a petitioner makes a “substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). The standard is satisfied if “jurists of reason could disagree
with the district court’s resolution of [the] constitutional claims” or “conclude the
issues presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
Judge Lynch correctly determined that the claims that Russell attempts to
advance do not appear to make a substantial showing that he was deprived of a
constitutional right. (Doc. 4 at 3.) Further, Russell has not complied with the
Court’s order to explain or clarify his claims. Id. A certificate of appealability is
denied because reasonable jurists would find no reason to encourage further
proceedings.
III.
Conclusion
The Court has reviewed Judge Lynch’s Findings and Recommendations for
clear error. The Court finds no error in Judge Lynch’s Findings and
Recommendations, and adopts them in full.
IT IS ORDERED that Judge Lynch’s Findings and Recommendations
(Doc. 4), are ADOPTED IN FULL.
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IT IS ORDERED that Russell’s Petition (Doc. 1) is DISMISSED without
prejudice for failure to comply with the Court’s March 13, 2018 order and/or for
failure to prosecute.
IT IS ORDERED that the Clerk of Court shall enter a judgment of
dismissal.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
DATED this 26th day of June, 2018.
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