In re Tucker

Full title: NATHANIEL G. TUCKER, Petitioner, Re: Motion for Relief Requesting…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION

Date published: Jun 25, 2021

Cause No. CV-21-51-BLG-SPW-TJC (D. Mont. Jun. 25, 2021)

Opinion

CV-21-51-BLG-SPW-TJC

06-25-2021

NATHANIEL G. TUCKER, Petitioner, Re: Motion for Relief Requesting Transport to Montana State Prison

Timothy J. Cavan United States Magistrate Judge

FINDINGS AND RECOMMENDATION OF UN ITED STATES MAGISTRATE JUDGE

Timothy J. Cavan United States Magistrate Judge

This matter comes before the Court on documents filed by state pro se petitioner Nathaniel Tucker, seeking federal habeas corpus relief under 28 U.S.C. § 2254. See, (Doc. 1 at 1); see also, (Doc. 2 at 1.) Specifically, Tucker requested that this Court order his transfer from the Roosevelt County Jail to the Montana State Prison.^[1] On May 10, 2021, Tucker was directed to file an Amended Petition. (Doc. 2.) Tucker has failed to timely respond to this Court's order.

[1] It appears that Mr. Tucker has already received the relief he sought. He has been transferred to the Montana State Prison. See, (Doc. 3.) It appears this transfer occurred on Tuesday, May 11, 2021. See, Montana Correctional Offender Network: https://app.mt.gov/conweb/Offender/3024875/ (accessed June 10, 2021).

I. Failure to Prosecute

Fed. R. Civ. P. 41(b) authorizes the Court to dismiss an action “[i]f the plaintiff fails to prosecute” the action. The Court may dismiss a case on its own without awaiting a motion. See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest Serv., 403 F.3d 683, 689 (9^th Cir. 2005).

In determining whether Plaintiff's failure to prosecute warrants dismissal of the case, the Court must weigh the following five 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 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9^th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir.1990).

“The public's interest in expeditious resolution of litigation always favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9^th Cir. 1999). Tucker has failed to file his Amended Petition within the requisite timeframe. This factor weighs in favor of dismissal.

Likewise, the second factor supports dismissal. “The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest.” Pagtalunan v. Galaza, 291 F.3d 639 (9^th Cir. 2002). The Court cannot manage its docket if Tucker refuses to comply with the Court's orders. Tucker's case has consumed judicial resources and time that could have been better spent on other matters. Therefore, this factor favors dismissal.

The third factor requires the Court to weigh the risk of prejudice to the Defendants. A rebuttable presumption of prejudice to respondents arises when a plaintiff unreasonably delays prosecution of an action. In re Eisen, 31 F.3d 1447, 1452-53 (9^th Cir. 1994). Nothing suggests that such a presumption is unwarranted in this case.

The Court has considered less drastic alternatives. Alternatives may include “allowing further amended complaints, allowing additional time, or insisting that appellant associate experienced counsel.” Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9^th Cir. 1981). Although less drastic alternatives to dismissal should be considered, the Court is not required to exhaust all such alternatives prior to dismissal. Id. Tucker was provided with an explanation of the information the Court required and was afforded an adequate amount of time to prepare his Amended Petition. Tucker failed to respond to the Court's order. At this juncture, the Court can envision no further alternatives to dismissal.

The last factor weighs against dismissal because public policy favors disposition of cases on their merits. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9^th Cir. 1998). But in light of the other four factors favoring dismissal, the weight of this factor is slight. The Court will therefore recommend that this matter be dismissed for failure to prosecute, pursuant to Fed. F. Civ. P. 41(b).

II. Certificate of Appealability

“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules governing § 2254 Proceedings. A COA should issue as to those claims on which a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is satisfied if “jurists of reason could disagree with the district court's resolution of [the] constitutional claims” or “conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Where a claim is dismissed on procedural grounds, the court must also decide whether “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

The claims Tucker attempts to advance do not appear to make a substantial showing that he was deprived of a constitutional right. Moreover, no reasonable jurist would suggest the Court go forward with the case without Tucker's participation. A certificate of appealability should be denied because reasonable jurists would find no reason to encourage further proceedings.

Based upon the foregoing, the Court issues the following:

RECOMMENDATIONS

1. Tucker's petition (Doc. 1) should be DISMISSED under Fed.R.Civ.P. 41(b) for failure to prosecute.

2. The Clerk of Court should be directed to a judgment of dismissal by separate document.

3. A certificate of appealability should be DENIED.

NOTICE OF RIGHT TO OBJECT TO OBJECT TO FINDINGS & RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT

Tucker may file objections to these Findings and Recommendations within fourteen (14) days after service. 28 U.S.C. § 636. Failure to timely file written objections may bar a de novo determination by the district judge and/or waive the right to appeal.