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Gomez v. MacDonald

United States District Court, C.D. California, Eastern Division

March 31, 2014

J. MACDONALD, Respondent.


VALERIE BAKER FAIRBANK, Senior District Judge.

Adopting R&R as Corrected & Supplemented;

Dismissing Habeas Petition without Prejudice due to Petitioner's Failure to Sign and Verify Petition;

Advising Petitioner that Dismissal Will Be Converted to "With Prejudice" If He Fails to File a Petition He Has Personally Signed & Verified No Later than Monday, April 28, 2014

This is a state prisoner's action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The U.S. Magistrate Judge has issued a Report and Recommendation ("R&R") recommending that the action be dismissed without prejudice on the grounds that petitioner has failed to prosecute this action and has failed to verify the petition despite being ordered to do so - on penalty of dismissal without prejudice - eight months ago and again four months ago. The time for objections elapsed weeks ago, yet petitioner has neither filed objections nor sought an extension of time in which to do so. For the reasons that follow, the Court will dismiss the petition without prejudice as recommended by the R&R. The Court will, however, correct and supplement the Report's analysis as set forth below. Finally, the Court will warn petitioner that if he fails to file a copy of the petition which he has personally signed and verified by a date certain, the Court will convert the dismissal of his petition to a "with prejudice" dismissal for lack of prosecution and failure to comply with court order.


The Court agrees with the Magistrate that Urbano has not shown that petitioner cannot himself access the court or that Urbano has a significant relationship with petitioner and is dedicated to petitioner's best interests. See R&R at 3 (citing Whitmore, 499 U.S. at 163-64, and Massie, 244 F.3d at 1194). "Most frequently, next friends' appear in court on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves." Whitmore, 499 U.S. at 163. Congress codified the longstanding common-law tradition of the next friend in 1948 by enacting 28 U.S.C. § 2242, which provides, "Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf. " See Whitmore, 499 U.S. at 163-64. As the Supreme Court has cautioned, however, "next friend' standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another." Id. Rather,

decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for next friend' standing. First, a next friend' must provide an adequate explanation - such as inaccessibility, mental incompetence, or other disability - why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the next friend must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate. The burden is on the next friend' clearly to establish the propriety of his status....

Whitmore, 499 U.S. at 164 (internal citations omitted). Urbano and petitioner have not submitted evidence sufficient to find that they had the necessary significant pre-existing relationship for Urbano to be allowed to prosecute this action as next friend. See Coalition of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1158 (9th Cir. 2002) ("The actual practice codified by Congress as to which persons could properly bring a petition was not without its limitations. An examination of the pre-amendment cases demonstrates consistently that each time next-friend habeas standing was granted by a federal court, there was a significant pre-existing relationship between the prisoner and the putative next friend", such as a wife as next friend for her husband, a woman for her brother, a mother for her son, or a brother-in-law for a minor) (citations omitted).

Nor have Urbano and petitioner submitted evidence which would permit this Court to find that petitioner suffers from some lack of access to this Court beyond the inconveniences inherent in prison life. Cf. Galvan v. Horel, 2007 WL 4239543, *3 (E.D. Cal. Dec. 3, 2007) ("Fellow inmate... seeks leave to proceed as next friend' for Petitioner. It is alleged that Petitioner cannot read or write English which hinders his ability to litigate this action, as there are only a few fellow inmates [who] are bilingual to assist him. Although it is unfortunate that Petitioner is not literate in the English language, this barrier is present in a majority of pro se prisoner actions, and Petitioner is no different from those litigants.").


First, the Court agrees that the petition is subject to dismissal without prejudice, in the Court's discretion, due to petitioner's failure to verify it as required by Rule 2© of the Rules Governing Section 2254 Cases in the U.S. District Courts ("Sec. 2254 Rules"). See R&R at 2; see also Calderon v. U.S. Dist. Ct. for Cent. Dist. of Calif., 127 F.3d 782, 788 n.4 (9th Cir. 1997) ("A habeas petition is also required to be verified personally by the petitioner....") (quoting Rule 2© of the Sec. 2254 Rules ("The petition... shall be signed under penalty of perjury by the petitioner.")), overruled on other grounds, 163 F.3d 530 (9th Cir. 1998). "All federal courts are vested with inherent powers enabling them to manage their cases and courtrooms effectively.'" U.S. v. Kent, 633 F.3d 920, 925 (9th Cir.) (quoting Aloe Vera of America, Inc. v. US, 376 F.3d 960, 964-65 (9th Cir. 2004) (per curiam) (citation omitted)), amended on other grounds & superseded on denial of reh'g en banc, 649 F.3d 906 (9th Cir. 2011).[1]

The Magistrate is also right to conclude (R&R at 2) that the petition is subject to dismissal without prejudice because petitioner's continuing failure to sign and verify his petition violates C.D. Cal. LCivR 11-1. It is well settled that a district court may also dismiss an action "based on a party's... failure to comply with federal or local rules of civil procedure." U.S. v. Real Property Located at 2855 Peter St., 2014 WL 279598, *4 (D. Haw. Jan. 23, 2014) (citing, inter alia, Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming discretionary dismissal of complaint due to plaintiff's failure to comply with local rules) and Buss v. W Airlines, Inc., 738 F.2d 1053, 1054 (9th Cir. 1984) (same)). "This measure is available to the district court as a tool to effect management of its docket and [to] avoid[]... unnecessary burdens on the tax-supported courts and [on] opposing parties.'" Smith v. Scott, ___ F.Supp.2d ___, 2014 WL 29607, *2 (S.D. Ohio Jan. 3, 2014) (quoting Knoll v. AT&T, 176 F.3d 359, 363 (6th Cir. 1999)).

The Court cannot agree, however, with the Report's statement that "[s]ince petitioner has failed to file a verified habeas petition, the Petition must be dismissed." R&R at 2 (emphasis added). The Ninth Circuit has expressly rejected the proposition that "it is reversible error for a district court to address the merits of an unverified petition." See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Rather, the Ninth Circuit holds, while a district court "may refuse to file, or may dismiss, an unsigned and unverified petition", Hendricks, 908 F.2d at 491 (citing, inter alia, In re Application of Gibson, 218 F.2d 320 (9th Cir. 1954)), "the defect is one that the district court may, if it sees fit, disregard." Hendricks, 908 F.2d at 491 (citing district-court decisions from other circuits); see, e.g., Martin v. Marshall, 2009 WL 3122551, *1 n.2 (C.D. Cal. Sept. 25, 2009) ...

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