Taggart v. Salmonson

Full title: LYLE PERRY TAGGART, Petitioner, v. JIM SALMONSON, ATTORNEY GENERAL OF THE…

Court: United States District Court, District of Montana

Date published: Oct 20, 2021

No. CV21-96-BLG-SPW (D. Mont. Oct. 20, 2021)

Opinion

CV21-96-BLG-SPW

10-20-2021

LYLE PERRY TAGGART, Petitioner, v. JIM SALMONSON, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

Susan P. Watters, United States District Court Judge.

ORDER

Susan P. Watters, United States District Court Judge.

Petitioner Lyle Perry Taggart is a state prisoner, proceeding pro se and in forma pauperis. Taggart seeks relief pursuant to 28 U.S.C. § 2254. On September 14, 2021, this Court issued an order directing Taggart to show cause as to why his petition should not be dismissed as time-barred and procedurally defaulted. (Doc. 4.) Taggart was given until October 8, 2021, to file his response, but has failed to do so. Accordingly, this matter will be dismissed based upon Taggart's failure to prosecute.

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 Petitioner's failure to prosecute warrants dismissal of the case, the Court must weigh the following five factors: "(1)^me 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). Taggart has failed to file his response 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 Taggart refuses to comply with the Court's orders. Taggart'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. Taggart was provided with an explanation of the information the Court required and was given an adequate amount of time within which to file his response. Taggart failed entirely to comply with 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 therefore finds this matter should 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 CO A 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 Taggart 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 Taggart's participation. A certificate of appealability will be denied because reasonable jurists would find no reason to encourage further proceedings.

Based upon the foregoing, the Court issues the following:

ORDER

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

2. The Clerk of Court is directed to enter a judgment of dismissal by separate document.

3. A certificate of appealability is DENIED.