United States District Court, Central District of California, Eastern Division
November 6, 2014
JOHN DAVIS, Petitioner,
John Davis, Petitioner, Pro se, Corcoran, CA.
For Unnamed Respondents, Respondent: Attorney General, LEAD ATTORNEY, State of California, Office of the Attorney General, San Diego, CA.
AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DOUGLAS F. McCORMICK, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Otis D. Wright II, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On July 18, 2014, Petitioner John Davis (" Petitioner") filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody (" Petition") in the United States District Court for the Southern District of California. Dkt. 1. On July 22, 2014, the case was transferred to this Court because Petitioner's state court conviction occurred within this Court's jurisdiction. Dkt. 3.
On August 1, 2014, this Court dismissed the Petition with leave to amend because its review of the Petition revealed that it suffered from several deficiencies. Dkt. 6. First, the Petition failed to name a respondent. Id. at 1. Second, it appeared to the Court that none of Petitioner's claims were framed as federal constitutional claims, and while the Court could envision how Grounds Two and Three could be re-framed as federal constitutional claims, Ground One appeared to raise a question of state law that would be noncognizable on federal habeas review. Id. at 1-2. Third, from the face of the Petition, it did not appear that any of Petitioner's grounds for relief had been presented to the California Supreme Court, and thus Petitioner's claims were unexhausted. Id. at 2-3.
In light of these pleading deficiencies, the Court ordered Petitioner to file a First Amended Petition within thirty-five days of service of the Court's order. Id. at 3.The Court directed the Clerk to send Petitioner a blank copy of the Central District state habeas petition form. Id. at 3. The Court also expressly cautioned Petitioner that failure to file a timely First Amended Petition would result in a recommendation that this action be dismissed without prejudice for failure to prosecute. Id. at 3-4.
Shortly thereafter, the Court received from Petitioner a " request for information" asking for this Court's assistance " in finding my District in California and the correct Appellate Project in Riverside County and the City of Blythe." Dkt. 7. Petitioner indicated that he needed this information so he could exhaust his claims in state court. Id. After providing Petitioner with the address of the California Appellate Project office serving Riverside County, the Court reminded Petitioner of his deadline to file an amended petition. Dkt. 8. The Court further reminded Petitioner that failure to file an amended petition may result in a recommendation that this action be dismissed for failure to prosecute. Id. The Court also sua sponte extended Petitioner's deadline to file an amended petition to October 17, 2014. Id.
The extended deadline for Petitioner to file his First Amended Petition has now elapsed. Petitioner has not filed a First Amended Petition. Nor has Petitioner sought any extension of time to do so.
This action should be dismissed without prejudice. The Petition is defective for the reasons stated in the Court's August 1 Order Dismissing Petition with Leave to Amend. Petitioner has not filed a First Amended Petition in compliance with the Order or requested an extension of time to do so. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute and/or failure to comply with a Court order. See Link v. Wabash R.R., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Fed.R.Civ.P. 41(b).
">In Carey v. King, 856 F.2d 1439 (9th Cir. 1988), the Ninth Circuit cited the following factors as relevant to the Court's determination whether to dismiss an action for failure to prosecute: " (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." See Carey, 856 F.2d at 1440.
Here, the Court finds that the first, second, and fifth Carey factors militate in favor of dismissal. As a result of Petitioner's failure to file a First Amended Petition correcting the deficiencies of the Petition, this action has been and will continue to be stalemated. Moreover, it does not appear to the Court that there are any less drastic sanctions available for the Court to impose. While the Court finds that the third and fourth Carey factor do not support dismissal, the Court has concluded that the other factors in this instance outweigh the third and fourth factors.
IT THEREFORE IS RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; (2) directing that Judgment be entered dismissing this action without prejudice.