Opinion
Case No. CV 20-5328-GW (JPR)
09-10-2020
DANNY VARNER, Petitioner, v. WARDEN, Respondent.
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING CASE
On July 13, 2020, Danny Varner, a prisoner at Terminal Island Federal Correctional Institution, wrote a letter to an "Honorable Judge," which the Court docketed as a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Because the document was a mishmash of civil-rights claims, habeas claims, a request to be made part of a class-action lawsuit concerning COVID-19 at Terminal Island, and a motion for compassionate release, the Magistrate Judge on July 23 dismissed the "Petition" with leave to amend. She instructed Varner on how to file an appropriate case-initiating document depending on what type of lawsuit he intended to bring and gave him 30 days to file any amended pleading, directing the clerk to provide him with various blank forms to facilitate his compliance. She warned him that if he did not timely file an amended pleading of some sort, "this lawsuit will likely be dismissed for failure to prosecute." To date Varner has not filed an amended pleading of any kind, nor has he requested an extension of time to do so.
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 respondent, (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. 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. And because the pleading is a mix of all sorts of claims — some of which, as the Magistrate Judge told Varner, must be filed in the sentencing district — the Court cannot adjudicate it without further input from Varner, which he has declined to give. See, e.g., Hernandez v. Paramo, No. CV 15-5351-RSWL (DFM), 2016 WL 1430002, at *1-2 (C.D. Cal. Apr. 11, 2016) (dismissing without prejudice lawsuit that was mix of habeas and civil-rights claims when petitioner failed to file amended pleading or request extension of time). And Varner has not rebutted the presumption of prejudice to Respondent caused by his unreasonable delay.
Finally, there does not appear to be any less drastic sanction to take, as Varner has not availed himself of the opportunity to amend his pleading even after being expressly warned that if he didn't 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, dismissal without prejudice is a less drastic sanction than with prejudice, which is authorized when a party has failed to diligently prosecute, 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 always does — 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 July 23, 2020 order and because Varner has failed to prosecute it. The Court takes no position on whether any subsequent habeas petition or other pleading would be timely or otherwise procedurally proper. DATED: September 10, 2020
/s/_________
GEORGE WU
U.S. DISTRICT JUDGE Presented by: /s/_________
Jean Rosenbluth
U.S. Magistrate Judge