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Stillwell v. Long

United States District Court, Ninth Circuit

October 17, 2013

DEON STILLWELL, Petitioner,
v.
DAVID B. LONG (Warden), et al., Respondents.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on October 16, 2012. Respondent filed an Answer on March 6, 2013. Petitioner failed to file a Reply within the allotted time.

The Magistrate Judge then ordered Petitioner to file a Reply within twenty (20) days of April 17, 2013. The Magistrate Judge's Order cautioned: "Failure timely to do so may result in the denial and dismissal of the Petition."

In Minute Orders dated May 6, 2013, and June 17, 2013, the Magistrate Judge granted Petitioner extensions of time to file a Reply. Nevertheless, Petitioner failed to file a Reply within the allotted time, as extended.

On July 22, 2013, the Magistrate Judge filed a "Report and Recommendation, etc., " recommending the denial and dismissal of the Petition without prejudice for failure to prosecute. On July 25, 2013, Petitioner belatedly filed another application for an extension of time to file a Reply.

In a Minute Order dated July 25, 2013, the Magistrate Judge withdrew the previous "Report and Recommendation, etc." and granted Petitioner yet another extension (until August 8, 2013) to file a Reply. Nevertheless, Petitioner again failed to file a Reply within the allotted time, as extended.

On August 27, 2013, the Magistrate Judge filed a second "Report and Recommendation, etc., " recommending the denial and dismissal of the Petition without prejudice for failure to prosecute. On September 9, 2013, Petitioner belatedly filed another application for an extension of time to file a Reply.

In a Minute Order dated September 11, 2013, the Magistrate Judge withdrew the second "Report and Recommendation, etc., " and granted Petitioner yet another extension (until September 30, 2013) to file a Reply. Nevertheless, Petitioner again failed to file a Reply within the allotted time, as extended.

DISCUSSION

The Petition should be denied and dismissed without prejudice for failure to prosecute. Petitioner repeatedly has failed to file a timely Reply, despite a Court Order that he do so and despite numerous extensions of time. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. Link v. Wabash R.R. , 370 U.S. 626, 629-30 (1962); see Fed.R.Civ.P. 41(b).

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.

ORDER ACCEPTING FINDIGNS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

JUDGMENT

Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,

IT IS ADJUDGED that the Petition is denied and dismissed without prejudice.


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