Jones v. Timothy Filson, et al.

Filing 47

ORDER that the petition in this case is hereby DISMISSED WITH PREJUDICE; that petitioner is DENIED a certificate of appealability; Clerk directed to enter final judgment and CLOSE case. Signed by Judge Howard D. McKibben on 8/13/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHNNY LEE JONES III,

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Petitioner,
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v.
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TIMOTHY FILSON, et al.,
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Respondents.
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_________________________________ )
On

January

8,

2018,

the

3:15-cv-00320-HDM-WGC
ORDER

court

entered

an

order

directing

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petitioner to file a supplemental brief addressing why he is entitled

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to equitable tolling based on (1) his use of certain medication from

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December 2005 through January 2007, and (2) his trial counsel’s

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failure to file a direct appeal. (ECF No. 41). On February 28, 2018,

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the court granted petitioner an extension of time to file his

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supplemental brief, to and including March 26, 2018.

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not file any response to the court’s order.

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On

May

14,

2018,

the

court

ordered

Petitioner did

petitioner

to

file

a

supplemental brief as set forth above within fifteen days of the date

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of the order. (ECF No. 44). The court advised petitioner that his

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failure to do so might result in the dismissal of this action with

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prejudice.

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On May 29, 2018, petitioner filed a motion for extension of time

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to comply with the court’s order, seeking an additional thirty days.

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(ECF No. 45).

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deadline to and including June 28, 2018.

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petitioner has not filed any response to the court’s order, whether

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a supplemental brief or a motion for extension of time.

The court granted petitioner’s motion, extending the
(ECF No. 46).

To date,

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As petitioner has failed to comply with the court’s orders, the

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court considers whether this action should be dismissed as a sanction.

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The court must weigh five factors before imposing the harsh sanction

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of dismissal: (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its own docket; (3) the

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risk of prejudice to opposing parties; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.

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841 (9th Cir. 2000); Malone v. U.S. Postal Service, 833 F.2d 128, 130

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(9th Cir. 1987). A warning that the action will be dismissed for

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failure to follow a court order is a less drastic alternative

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sufficient to satisfy the last factor. See Malone, 833 F.2d at 132-33

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& n.1.

See Bautista v. Los Angeles County, 216 F.3d 837,

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As the court previously warned petitioner that this action would

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be dismissed if he did not comply with the court’s order, the fifth

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factor weighs in favor of dismissal. In addition, this action has been

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pending without resolution of an important threshold issue for more

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than seven months, despite the court’s repeated efforts to address the

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matter. The first and second factors therefore favor dismissal. As
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dismissal would be with prejudice, there is little risk of prejudice

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to the respondents. The third factor also therefore favors dismissal.

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While the fourth factor of course weighs against dismissal, it is not

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sufficient to outweigh all the other factors.

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Accordingly, as petitioner has failed to comply with this court’s

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orders, IT IS THEREFORE ORDERED that the petition in this case will

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be, and hereby is, DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that petitioner is DENIED a certificate of

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appealability, as jurists of reason would not find the court’s

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dismissal of this action to be debateable or wrong.
The clerk of court shall enter final judgment accordingly and
CLOSE this case.
IT IS SO ORDERED.

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DATED: This 13th day of August, 2018.
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_________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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