Opinion
Case No. 1:13-cv-00926 MJS (HC)
08-15-2013
JOSHUA ROBERT DALY, Petitioner, v. FEDERAL BUREAU OF PRISONS, et al., Respondents.
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION DUE TO
PETITIONER'S FAILURE TO FOLLOW A
COURT ORDER
[Doc. 7]
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
On June 17, 2013, Petitioner filed a filed a notice of motion to file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. However, Petitioner did not file a copy of the petition with the notice of motion. Following a preliminary review of the notice of motion, on July 2, 2013, the Court issued an order requiring Petitioner to file a petition with the Court within thirty (30) days. (Order, ECF No. 9.) Petitioner was forewarned that failure to comply with the order would result in the dismissal of the petition pursuant to Local Rule 110. (Id.)
Over thirty (30) days have passed, and Petitioner has not complied with the order.
I. DISCUSSION
Local Rule 110 provides that a "[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." District courts have the inherent power to control their dockets and in the exercise of that power they may impose sanctions including dismissal of a case. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the court must consider several 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; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.
In the instant case, the Court finds that the public's interest in expeditiously resolving this litigation and the Court's interest in managing the docket weigh in favor of dismissal because Petitioner has not provided the Court and Respondent with a petition stating his claims. Without a petition on file, the Court is not in a position to adjudicate any claims Petitioner may present. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is outweighed by the factors in favor of dismissal. Finally, a court's warning to a party that his failure to obey the court's order will result in dismissal satisfies the "consideration of alternatives" requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court's order for Petitioner to file a petition with the Court stated that dismissal would result from non-compliance with the Court's order.
II. CONCLUSION
Petitioner has failed to comply with a court order. Therefore, the petition must be dismissed.
III. ORDER AND RECOMMENDATION
The Court ORDERS the Clerk of Court to assign a United States District Court Judge to the present matter.
The Court RECOMMENDS that the petition for writ of habeas corpus be DISMISSED for failure to comply with a court order.
These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within fourteen (14) days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED.
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE