United States District Court, C.D. California, Western Division
MEMORANDUM AND ORDER DISMISSING ACTION WITHOUT
D. Wright, II United States District Judge
a state prisoner, filed a petition for a writ of habeas
corpus. On May 5, 2016, the petition was dismissed without
prejudice and with leave to amend. The order dismissing the
petition explained that the Court was unable to decipher the
legal and factual basis for petitioner's claim for
relief. The order also observed that petitioner apparently
had not exhausted his state remedies with respect to any
challenge to his state conviction. Finally, the order noted
that the petition seemed to be barred by the one year
limitation period set forth in 28 U.S.C. § 2244(d).
was provided an opportunity to cure these deficiencies by
filing an amended petition. Petitioner was cautioned that
failure to timely comply with the order would result in
dismissal of this action without prejudice. Petitioner's
amended petition was due on June 3, 2016. As of the date of
this order, petitioner has neither filed an amended petition
nor requested additional time within which to do so.
district court's authority to dismiss a litigant's
action for failure to prosecute or to comply with court
orders is well-established. See Fed.R.Civ.P. 41(b);
Link v. Wabash R. Co., 370 U.S. 626, 629-630 (1962);
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.),
cert. denied, 506 U.S. 915 (1992). "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 calendar of the District Courts."
Link, 370 U.S. at 629-630.
determining whether to dismiss a case for failure to
prosecute, failure to comply with court orders, or failure to
comply with a local rule, a district court should consider
the following 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 the defendants; (4) the public policy favoring
disposition of cases on their merits; and (5) the
availability of less drastic sanctions." In re
Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d
1217, 1226-1228, 1234-1252 (9th Cir. 2006) (discussing and
applying those factors); see Pagtalunan v. Galaza,
291 F.3d 639, 642 (9th Cir. 2002) (same), cert.
denied, 538 U.S. 909 (2003); see generally Computer
Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th
Cir. 2004) (failure to comply with discovery orders);
Southwest Marine Inc. v. Danzig, 217 F.3d 1128, 1138
(9th Cir. 2000) (failure to prosecute), cert.
denied, 523 U.S. 1007 (2001). Regardless of whether a
litigant's conduct is most properly characterized as a
failure to prosecute, comply with an order, or follow a local
rule, the applicable standard is the same.
first and second factors - the public's interest in
expeditious resolution of litigation and the court's need
to manage its docket - favor dismissal. See Computer Task
Group, 364 F.3d at 1115; Pagtalunan, 291 F.3d
at 642; Yourish v. California Amplifier, 191 F.3d
983, 990 (9th Cir. 1999)); see also In re PPA Prod. Liab.
Litig., 460 F.3d at 1234 ("[D]ismissal serves the
public interest in expeditious resolution of litigation as
well as the court's need to manage the docket when a
plaintiff's noncompliance has caused the action to come
to a halt, thereby allowing the plaintiff, rather than the
court, to control the pace of the docket.").
third factor - prejudice to defendants or respondents - also
weighs in favor of dismissal. In the absence of a showing to
the contrary, prejudice to defendants or respondents is
presumed from unreasonable delay. In re Eisen, 31
F.3d 1447, 1452-1453 (9th Cir. 1994)(citing Anderson v.
Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976));
see also Pagtalunan, 291 F.3d at 642-643 (holding
that unreasonable delay weighed in favor of dismissal, and
noting that "[u]nnecessary delay inherently increases
the risk that witnesses' memories will fade and evidence
will become stale") (citing Sibron v. New York,
392 U.S. 40, 57 (1968)).
fourth factor - the availability of less drastic sanctions -
also supports dismissal. The Court explicitly warned
petitioner about the consequences of failing to file an
amended petition. See In re PPA Prod. Liab. Litig.,
460 F.3d at 1229 ("Warning that failure to obey a court
order will result in dismissal can itself meet the
‘consideration of alternatives'
requirement."); Ferdik, 963 F.2d at 1262
("[A] district court's warning to a party that his
failure to obey the court's order will result in
dismissal can satisfy the ‘consideration of
alternatives' requirement."); Anderson, 542
F.2d at 525 ("There is no requirement that every single
alternative remedy be examined by the court before the
sanction of dismissal is appropriate. The reasonable
exploration of possible and meaningful alternatives is all
that is required.").
fifth factor - the public policy favoring disposition of
cases on their merits - weighs against dismissal, as it
always does. Pagtalunan, 291 F.3d at 643 (citing
Hernandez v. City of El Monte, 138 F.3d 393, 399
(9th Cir. 1998)). Despite the policy favoring disposition on
the merits, however, it remains a litigant's
responsibility to comply with orders issued by the court and
"to move towards that disposition at a reasonable pace,
and to refrain from dilatory and evasive tactics."
In re Eisen, 31 F.3d at 1454 (quoting Morris v.
Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.
1991)). Petitioner has not fulfilled that obligation.
five-factor test for dismissal under Rule 41(b) is a
disjunctive balancing test, so not all five factors must
support dismissal. See Valley Eng'rs Inc. v. Elec.
Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)
(noting that the five-factor test "amounts to a way for
a district judge to think about what to do, not a series of
conditions precedent" to dismissal), cert.
denied, 526 U.S. 1064 (1999); Hernandez, 138
F.3d at 399 (explaining that dismissal is appropriate when
four factors support dismissal or where three factors
"strongly" support dismissal). Four of the five
factors support dismissal in this case.
to dismissal on the court's own motion, a pro se
petitioner should be notified of the basis for dismissal and
warned that dismissal is imminent. See Ferdik, 963
F.2d at 1262; West Coast Theater Corp. v. City of
Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). That
prerequisite has been satisfied in this case. Therefore,
dismissal under Rule 41(b) is appropriate.
within the Court's discretion to determine whether
dismissal for failure to prosecute or failure to comply with
orders should be with prejudice or without prejudice.
Considering all the circumstances, dismissal without
prejudice is more ...