Opinion
CV 22-671-RSWL (E)
04-15-2022
JOSEPH WILLIAMS, Petitioner, v. GIGI MATTESON, Respondent.
RONALD S.W. LEW, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a “Petition for Writ of Habeas Corpus by a Person in State Custody” on January 28, 2022. Respondent filed a “Motion to Dismiss, etc., ” on February 25, 2022. The Magistrate Judge ordered that Petitioner file opposition to the Motion to Dismiss within thirty (30) days of February 25, 2022. See Minute Order filed February 25, 2022. The Magistrate Judge cautioned Petitioner that “[f]ailure to file timely opposition to the motion may result in denial and dismissal of the Petition.” Id. Nevertheless, Petitioner failed to file opposition within the allotted time.
DISCUSSION
The Petition should be denied and dismissed without prejudice. Petitioner has failed to file timely opposition to a potentially dispositive motion, despite a court order that he do so. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962). The Court has considered the factors recited in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir.), cert. denied, 506 U.S. 915 (1992), and has concluded that dismissal without prejudice is appropriate. In particular, any less drastic alternative would not be effective under the circumstances of this case.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
RONALD S.W. LEW, UNITED STATES DISTRICT JUDGE
JUDGMENT
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and dismissed without prejudice.