The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 28 2254
For reasons stated below, the petition is dismissed without prejudice.
The pro se petition is in custody at Patton State Hospital, in Patton, California, in this district. On June 9, 2010, Petitioner filed a petition for writ of habeas corpus. [Docket no. 1.] In a minute order filed January 4, 2011 (docket no. 4), the court found the petition subject to dismissal, on its face, for the following reasons:
(a) Petitioner appears to be in state custody, and to be challenging the legality of that custody in a habeas petition. (If he seeks monetary damages, he is advised that he cannot obtain such relief in a habeas action.) However, he has not identified the nature of that custody. There are two statutes under which a person may challenge the legality of state custody in a habeas action in federal court. A person in custody under a state court judgment may proceed under 28 U.S.C. § 2254; a person in state custody under some basis other than a state court judgment may proceed under 28 U.S.C. § 2241. See Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004); White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004); McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003). Because Petitioner has not made clear the basis for his custody, it is not clear whether this action falls under § 2254 or § 2241.
(b) Petitioner has not established personal jurisdiction by naming a proper respondent (normally a specific official, such as a warden or director, with the power to order Petitioner's release). 28 U.S.C. § 2242; 28 foll. § 2254, Rule 2.
(c) Petitioner has not clearly stated a claim that he is in custody in violation of the constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2242, 2254(a).
(d) Petitioner has not shown that he has exhausted available state court remedies. For § 2254 petitions the exhaustion requirement is defined at 28 U.S.C. § 2254(b)-(c). For § 2241 petitions by persons in state custody there is a common law exhaustion requirement. See, e.g., McNeeley, 336 F.3d at 825-26.
(e) Petitioner has not used one of the form petitions authorized by this court for § 2254 or § 2241 cases. Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, Rule 2(d); Local Rule 83-16.1.
The court ordered Petitioner to show cause, on or before January 28, 2011, why the petition should not be summarily dismissed for the reasons stated above, with detailed instructions on how to correct the facial defects in the petition. [Id.] The court also informed Petitioner that, if he could satisfy the stated conditions, the court would grant him leave to file an amended petition, but that, if he did not comply with the order to show cause, his action would be subject to dismissal for failure to prosecute, as well as for the reasons stated above. Petitioner has not responded to the order to show cause, or otherwise communicated with the court, and the time allotted for doing so has expired.
It is well established that district courts have authority to dismiss actions for failure to prosecute or to comply with court orders. Fed. R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962)(authority to dismiss for failure to prosecute necessary to avoid undue delay in disposing of cases and congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)(district court may dismiss action for failure to comply with any court order).
In deciding whether to dismiss for failure to prosecute or to comply with court orders a district court ...