Opinion
Case No. CV 15-2819-JVS (JPR)
07-06-2015
JEFEREY BAIDA, Petitioner, v. Warden, Respondent.
ORDER DISMISSING HABEAS PETITION AND ADMINISTRATIVELY CLOSING CASE
On April 16, 2015, Petitioner filed an untitled document that appeared to challenge a state-court sentence following a criminal conviction of some sort. Because the Petition was not submitted on either the national form appended to the Habeas Rules or the form currently approved and supplied by the Central District of California for habeas petitions, see R. 2(d), Rs. Governing § 2254 Cases in U.S. Dist. Cts. (authorizing district court to require by local rule that habeas petitions be filed in form prescribed by rule); see also Cent. Dist. Local R. 83-16.1, the Magistrate Judge on April 27 dismissed the Petition with leave to amend. She instructed Petitioner to file an amended petition on the required Central District form, which she directed the Clerk to provide to him, no later than May 27, 2015, and warned him that if he did not do so his Petition could be dismissed for failure to prosecute. On May 13, 2015, the Court's Order was returned as undeliverable, apparently because of a typographical error in Petitioner's address. On May 14, 2015, the Magistrate Judge ordered that the April 27 Order and attachments be re-served on Petitioner at the corrected address, and she gave him 30 days from the date of that Order to file any amended petition. She again warned him that his failure to do so could result in his Petition being dismissed for failure to prosecute. To date Petitioner has not filed an amended Petition or any other communication with the Court, nor have the May 14 Order and attachments been returned as undeliverable.
Courts may dismiss lawsuits that are not diligently prosecuted. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam). In determining whether to dismiss a pro se petitioner's action for failure to prosecute, a court must consider (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. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Unreasonable delay creates a rebuttable presumption of prejudice to the opposing party that can be overcome only with an affirmative showing of just cause by the petitioner. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).
Here, the first, second, third, and fifth factors militate in favor of dismissal. The Court cannot simply leave hanging on its docket a case without a viable initial pleading. Indeed, because Petitioner did not use the required Central District form, the Court cannot adequately screen the Petition to determine whether its claims have been exhausted in state court or whether it is timely. Further, Petitioner has not rebutted the presumption of prejudice to Respondent caused by his unreasonable delay in prosecuting this action. Finally, there does not appear to be any less drastic sanction the Court can take, as Petitioner has not availed himself of the opportunity to amend the Petition even after being expressly warned that if he failed to do so his case might be dismissed. To the extent the prior dismissal with leave to amend does not constitute a "sanction," see Pagtalunan, 291 F.3d at 643, the Court notes that dismissal without prejudice is a less drastic sanction than with prejudice, which is authorized when a party has failed to diligently prosecute a lawsuit, see id. at 642-43 (affirming dismissal of habeas petition with prejudice for failure to diligently prosecute). Although the fourth factor weighs against dismissal — as it does in every case — the other factors together outweigh the public's interest in disposing of the case on its merits.
Accordingly, this action is dismissed without prejudice for the reasons stated in the Magistrate Judge's April 27, 2015 Order and under the Court's inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute.
In dismissing this action without prejudice, the Court expresses no view on whether any subsequent habeas petition would be timely. --------
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: July 6, 2015
/s/_________
JAMES V. SELNA
U.S. DISTRICT JUDGE
Presented by: JEAN ROSENBLUTH
Jean Rosenbluth
U.S. Magistrate Judge