Opinion
Case No. 2:19-cv-02422-KJM-JDP (HC)
02-08-2021
MICHAEL LEE ROESSLER, Petitioner, v. PATRICK COVELLO, Respondent.
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO PROSECUTE OBJECTIONS DUE IN FOURTEEN DAYS
Petitioner filed this habeas action on December 2, 2019. ECF No. 1. On March 20, 2020, respondent filed a motion to dismiss. ECF No. 13. On April 20, 2020, after the period for petitioner to file an opposition or statement of non-opposition had passed, Judge Brennan entered an order directing petitioner to respond to the motion to dismiss within twenty-one days. ECF No. 15. Petitioner then sought, and was granted, numerous extensions of time to respond. ECF Nos. 16-25, 27-28. Despite being granted additional time, petitioner never responded to the motion. On January 20, 2021, I entered an order directing petitioner to show cause within fourteen days why this case should not be dismissed for failure to prosecute. ECF No. 29. I warned petitioner that his failure to respond to my order would result in a recommendation that this action be dismissed. Id. at 2. More than fourteen days have passed, and petitioner has neither responded to my order nor responded to respondent's long pending motion to dismiss. Instead, he has filed a motion to stay this action that does not address either respondent's motion or my show cause order. ECF No. 30.
This case was reassigned to me on October 1, 2020. ECF No. 26. --------
I must consider the following five factors in determining whether to dismiss an action for failure to prosecute or comply with court orders: "(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 (9th Cir. 1988) (per curiam) (internal quotation marks and citation omitted). Here, all factors save the fourth weigh in favor of dismissal. Respondent's motion to dismiss has been pending nearly a year. Petitioner has shown that he is unwilling, despite numerous extensions, to engage with that motion. He should not be permitted to ignore it. Nor should he be permitted to ignore my order directing him to show cause.
I recommend that this action be dismissed for failure to prosecute.
This recommendation will be submitted to a U.S. district judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of these findings and recommendations, petitioner may file written objections with the court. That document must be captioned "Objections to Magistrate Judge's Findings and Recommendations." The presiding district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). IT IS SO ORDERED. Dated: February 8, 2021
/s/_________
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE