Bartell v. State of Montana
ORDER DISMISSING CASE. COA denied. Signed by Judge Dana L. Christensen on 11/18/2022. Transmitted electronically to prison for delivery to inmate. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
WESLEY JOSEPH BARTELL,
Cause No. CV 21-116-M-DLC
STATE OF MONTANA,
This matter comes before the Court following Petitioner Bartell’s failure to
respond to an order. Bartell is a state prisoner proceeding pro se.
Bartell’s pleadings were not clear, but they appeared, in substance, to be a
challenge to the legality of his custody under a state criminal judgment. On
November 2, 2021, United States Magistrate Judge Kathleen DeSoto explained to
Bartell that he could proceed with a petition for writ of habeas corpus under 28
U.S.C. § 2254. She also told him that, if he intended to file a habeas petition, he
should be sure to include all the claims he wanted to make. See Order (Doc. 4) at
Bartell responded by stating that he was “entitled to the filing of a federal
writ of habeas corpus, 28 U.S.C. § 2254.” Judge DeSoto deemed all of his
pleadings (Docs. 1, 3, and 5) to be his petition. She asked Bartell to respond to
specific questions or concerns raised by his pleadings. See Order (Doc. 8) at 2–4.
Bartell requested an extension of time to respond, which was granted. See
Mot., Order (Docs. 9, 10). When Bartell failed to respond, Judge DeSoto issued
another order, stating that she was “reluctant to decide the issues presented by
Bartell’s submissions to date” in view of the “stringent restrictions on federal
habeas relief.” Order (Doc. 11) at 1. She explained why she believed Bartell had
not yet shown an entitlement to relief and gave him another thirty days to respond.
See id at 2–4. She noted that Bartell’s failure to respond could result in dismissal
of his case with prejudice for failure to prosecute. See Order (Doc. 11) at 5.
Bartell again requested additional time. Judge DeSoto gave him more than
60 additional days. See Mot., Order (Docs. 12, 13). Bartell failed to respond.
Federal Rule of Civil Procedure 41(b) authorizes the Court to dismiss an
action “[i]f the plaintiff fails to prosecute” the action. The Court may dismiss a
case on its own motion without awaiting a defense motion. See, e.g., Link v.
Wabash R.R., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v.
United States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
In considering dismissal, a court must weigh five 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 or respondents; (4) the
availability of less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits. See Pagtalunan v. Galaza, 291 F.3d 639, 642
(9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992));
see also Tillman v. Tillman, 825 F.3d 1069, 1074 (9th Cir. 2016) (applying
The first factor generally favors dismissal. The fifth generally counsels
against it. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1990);
Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138 F.3d 393,
399 (9th Cir. 1998)). No special considerations suggest these factors should be
viewed differently here. The Court will consider factors two, three, and four.
Judge DeSoto expended considerable time and effort to explain to Bartell
what he must do in order to proceed with his case. Other petitioners have
attempted in good faith to comply with court orders. Time and resources should be
directed to them. This case interferes with and takes time away from those cases.
The second factor, concerning docket management, weighs in favor of dismissal.
See Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 990).
Bartell’s inaction makes it impossible for the Respondent to justify its own
position on his allegations. The third factor weighs in favor of dismissal. See
Pagtalunan, 291 F.3d at 642 (citing Malone v. United States Postal Serv., 833 F.2d
128, 131 (9th Cir. 1987)).
No viable alternatives to dismissal appear. Judge DeSoto gave Bartell
multiple opportunities to move forward. This factor weighs in favor of dismissal.
Courts exist to resolve disputes on the merits. Here, however, Bartell has
essentially abandoned the action. All four of the other Pagtalunan factors counsel
Regardless of whether Bartell makes a substantial showing that he was
denied a constitutional right, see 28 U.S.C. § 2253(c)(2), reasonable jurists would
find no basis to disagree with the dismissal on procedural grounds. See Gonzalez
v. Thaler, 565 U.S. 134, 140–41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). A certificate of appealability is not warranted.
Accordingly, IT IS ORDERED:
1. The petition (Docs. 1, 3, 5) is DISMISSED WITH PREJUDICE for
failure to prosecute.
2. The clerk shall enter, by separate document, a judgment of dismissal with
3. A certificate of appealability is DENIED.
DATED this 18th day of November, 2022.
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