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