United States District Court, C.D. California
January 26, 2015
FERNANDO MORALES AGUILAR, Petitioner,
PAUL COPENHAVER, Warden, Respondent
Fernando Morales Aguilar, Petitioner, Pro se, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Manuel L. Real, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On May 1, 2014, Petitioner, a federal prisoner proceeding pro se, constructively filed a pleading entitled " Civil Complaint Pursuant to 28 U.S.C. § 1331" in the Eastern District of California. The Eastern District construed the complaint as a Petition for Writ of Habeas Corpus (" Petition") pursuant to 28 U.S.C. § 2241, and transferred the case to the Central District of California on May 14, 2014. (Dkt. No. 2).
On October 23, 2014, the Court dismissed the Petition with leave to amend on grounds that Petitioner's claims were vague and confusing and the Court could not ascertain Petitioner's claims for relief (the " ODLA"). (Dkt. No. 7 at 4). The Court noted that a federal prisoner may seek habeas relief under 28 U.S.C. section 2241 or section 2255, depending on whether he is challenging his sentence's execution or its legality. (ODLA at 5). Filing a habeas petition under the proper statute is critical to determining whether a court's jurisdiction is proper. (Id.; see also Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (generally, motions under section 2241 must be brought in the custodial court, while motions under section 2255 must be brought in the sentencing court)). Therefore, the Court ordered Petitioner to clarify whether he was challenging the legality or the execution of his sentence, to explain what violations occurred and to provide specific facts supporting each claim. (ODLA at 7).
Petitioner was required to file a First Amended Petition (" FAP") by November 24, 2014. The Court expressly warned Petitioner that failure to file an amended petition would result in a recommendation that the action be dismissed with prejudice for failure to prosecute. (Id. at 8-9). In the alternative, the Court advised Petitioner that he could voluntarily dismiss the Petition without prejudice, and provided a form for this purpose. (Id. at 9). To date, however, Petitioner has not dismissed the Petition, filed a FAP or requested an extension of time in which to do so.
On December 17, 2014, the Court issued an Order to Show Cause requiring Petitioner to demonstrate why this action should not be dismissed for failure to prosecute (the " OSC"). (Dkt. No. 8 at 2). The Court again advised Petitioner that he could voluntarily dismiss the Petition, and cautioned that failure to respond would result in a recommendation that the action be dismissed with prejudice. (Id.). To date, however, Petitioner has not filed a declaration or responded to the OSC. Accordingly, for the reasons discussed below, it is recommended that the Petition be DENIED and that this action be DISMISSED for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
Federal Rule of Civil Procedure 41(b) grants district courts the authority to dismiss actions sua sponte for failure to prosecute or failure to comply with court orders. See Link v. Wabash R.R., 370 U.S. 626, 629-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (" The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts."). Dismissal, however, is a harsh penalty and is to be imposed only in extreme circumstances. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
In considering whether to dismiss an action for failure to prosecute, the Court must weigh five factors: " (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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
A. The Five Factors Support Dismissal
1. Expeditious Resolution And The Court's Need To Manage Its Docket
In the instant action, the first two factors -- the public's interest in expeditious resolution of litigation and the Court's need to manage its docket -- favor dismissal. The Court ordered Petitioner to file a FAP by November 24, 2014 if he wished to pursue this action. (ODLA at 8-9). Petitioner failed to file an amended petition or otherwise respond to the Court's order. Petitioner has also failed to respond to the Court's Order to Show Cause which required a response by December 31, 2014. (OSC at 2). Petitioner's conduct hinders the Court's ability to move this case toward its disposition and indicates that Petitioner does not intend to litigate this action diligently.
2. The Risk Of Prejudice To Respondent
The third factor -- prejudice to Respondent -- also favors dismissal. The risk of prejudice to a respondent is related to the petitioner's reason for failure to prosecute an action. See Pagtalunan, 291 F.3d at 642 (citing Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)).
Where a party offers a poor excuse for failing to comply with a court's order, the prejudice to the opposing party is sufficient to favor dismissal. See Yourish, 191 F.3d at 991-92. Here, Petitioner has not offered any excuse for his failure to file a FAP. Accordingly, the risk of prejudice to Respondent favors dismissal.
3. Less Drastic Alternatives
The fourth factor -- the availability of less drastic alternatives -- also favors dismissal. The Court attempted to avoid outright dismissal of this action by granting Petitioner thirty days to file an amended petition. (ODLA at 8-9). The Court expressly warned Petitioner that failure to comply would result in a recommendation that the Petition be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Id. at 9). The Court granted Petitioner fourteen days to respond to the OSC, with the same caution. (OSC at 2). Petitioner failed to comply with either order. Alternatives other than dismissal are not appropriate given Petitioner's failure to participate in his own litigation. See Henderson, 779 F.2d at 1424 (" The district court need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives.").
4. Public Policy Favoring Disposition On The Merits
The fifth factor -- the public policy favoring the disposition of cases on their merits -- ordinarily weighs against dismissal. However, it is the responsibility of the moving party to prosecute the action at a reasonable pace, and to refrain from dilatory and evasive tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Petitioner has not discharged this responsibility despite having ample time and opportunity to do so. Under these circumstances, the public policy favoring the resolution of disputes on the merits does not outweigh Petitioner's failure to file responsive documents.
B. Dismissal Of This Action Is Appropriate
For the stated reasons, the Court concludes that dismissal of this action is warranted under Rule 41(b), which states:
[A] dismissal under this subdivision (b) and any dismissal not under this rule __ except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 -- operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b).
The Court recommends dismissal of this action due to Petitioner's failure to prosecute. As this case does not fall into one of the three exceptions noted above, the dismissal will operate as an adjudication on the merits. The dismissal will thus be with prejudice to Plaintiff's filing of a new petition based on the same underlying conviction. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (dismissal interpreted as an adjudication on the merits unless one of the Rule 41(b) exceptions applies).
Petitioner was expressly warned about the possibility of dismissal with prejudice if he failed to comply with the Court's orders. (See ODLA at 9; OSC at 2). Petitioner will have the opportunity to file objections to this Report and Recommendation if he wishes to contest the dismissal of this action.