Opinion
EDCV 21-1540-JAK (KS)
12-20-2021
Jeffrey P. Perrotte v. Riverside Superior Court et al.
Present: The Honorable: Karen L. Stevenson. United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL
On September 9, 2021, Petitioner, a California state prisoner represented by retained counsel filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the "Petition") challenging a parole revocation proceeding. (Dkt. No. 1.) On October 22, 2021, Respondent filed a Motion to Dismiss (the "Motion") on the ground that two of the claims are unexhausted. (Dkt. No. 8.) Respondent specifically requests that the Court dismiss the entire Petition because it contains unexhausted claims. (Dkt. No. 8-1 at 4.)
Pursuant to the Court's September 16, 2021 Order Requiring Response to Petition for Writ of Habeas Corpus, Petitioner's opposition to that Motion was due within 30 days of the service of the Motion - that is, no later than November 22, 2021. (Dkt. No. 6 at 3; Dkt. No. 8 at 3.)
Petitioner's opposition is now nearly a month past-due. Local Rule 7-12 states that a party's failure to file a required document such as an opposition to a motion "may be deemed consent to the granting . . . of the motion." Further, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, an action may be subject to involuntary dismissal if a Petitioner "fails to prosecute or to comply with these rules or a court order." Thus, the Court could properly recommend dismissal of the action for Petitioner's failure to oppose the Motion and timely comply with the Court's orders. 1
However, in the interests of justice. Petitioner is ORDERED TO SHOW CAUSE on or before January 10, 2022 why the action should not be dismissed under Local Rule 7-12 and Rule 41(b) of the Federal Rules of Civil Procedure. In order to discharge this Order and proceed with this action, Petitioner must file by the January 10, 2022 deadline either:
(1) an opposition to the Motion in compliance with the Local Rules and this Court's orders; or
(2) a request for an extension to file an opposition accompanied by a sworn declaration (not to exceed 3 pages) establishing good cause for Petitioner's failure to timely respond to the Motion.
Alternatively, Petitioner may discharge this order and dismiss this case by filing a signed document entitled a "Notice of Voluntary Dismissal" requesting the voluntary dismissal of the action without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
Petitioner is cautioned that the failure to timely comply with this order will lead to a recommendation of dismissal based on Local Rule 7-12 and Rule 41 of the Federal Rules of Civil Procedure. 2