United States District Court, C.D. California
PRESENTED BY: HON. MICHAEL R. WILNER UNITED STATES MAGISTRATE
JUDGE
ORDER DISMISSING ACTION WITHOUT PREJUDICE
HON.
CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE
The
Court dismisses this state habeas action based on
Petitioner’s failure to: (a) sign the habeas petition;
and (b) respond to court orders.
* * *
Petitioner
filed this habeas action in late 2015 to challenge his state
court murder conviction. (Docket # 1.) The California
Attorney General responded to the petition in March 2016.
(Docket # 17.) The Attorney General requested that the Court
dismiss the action based on Petitioner’s failure to
sign or verify the original pleading. (Id. at
16-17.)
Magistrate
Judge Wilner issued an order after reviewing the Attorney
General’s submission. (Docket # 19.) Judge Wilner
informed Petitioner that he could cure the error that the
Attorney General identified by “verifying under penalty
of perjury that he filed the petition stating the claims
asserted.” (Id.) Judge Wilner set an April
2016 deadline for Petitioner to submit his verification and
any other reply to the Attorney General’s filing.
Petitioner did not respond to Judge Wilner’s order or
the Attorney General’s motion.
In May
2016, Judge Wilner issued a second order. (Docket # 20.)
Judge Wilner noted Petitioner’s failure to comply with
the Court’s earlier order. Additionally, the Court
observed that Petitioner did not sign other case commencing
documents submitted in the case (IFP declaration (Docket # 1
at 19) and magistrate judge consent form (Docket # 3)). Judge
Wilner found this “sufficient to raise a question
regarding the legitimacy and validity of the action.”
(Docket # 20 at 2 (citing Hendricks v. Vasquez, 908
F.2d 490, 491 (9th Cir. 1990).) Judge Wilner again ordered
Petitioner to file a signed attestation to verify the
original habeas petition. The order expressly advised
Petitioner that failure to comply could lead to a
recommendation that the case be dismissed for failure to
prosecute or to abide by the rules and orders of the Court.
(Docket # 20 at 2.)
Petitioner
failed to respond to the Court’s second order. A review
of the docket reveals that Petitioner has not filed anything
with the Court since the commencement of the action nine
months ago.
* * *
Habeas
Rule 2(c)(5) states that a habeas petition “must [ ] be
signed under penalty of perjury by the petitioner.” The
rule tracks the statutory provision that a habeas petition
“shall be in writing signed and verified by the person
for whose relief it is intended.” 28 U.S.C. §
2242.
A
federal court “may dismiss[ ] an unsigned and
unverified petition” in a habeas action.
Hendricks, 908 F.2d at 491. The decision to dismiss
an unsigned habeas petition rests with the discretion of the
district court. Gomez v. MacDonald, No. ED CV
13-1367 VBF (SH), 2014 WL 1330528 at *3 (C.D. Cal. 2014)
(“in keeping with the customary practice of judges in
this district, the Court will exercise its discretion to
dismiss the petition” for failure to sign).
Among
the facts to consider in exercising this discretion is
whether Petitioner properly signed other documents in the
action and had adequate opportunity to cure the defective
pleading. Martin v. Marshall, No. CV 09-1033 RGK
(AJW), 2009 WL 3122551 at n.2 (C.D. Cal. 2009) (prisoner
failed to sign petition, but did sign proof of service);
Nguyen v. Busby, No. SA CV 11-992 DDP (FMO), 2011 WL
9158277 (C.D. Cal. 2011) (prisoner cured signature error by
filing signed, amended petition after notice from court);
remanded on other grounds, 2012 WL 4513784 (C.D. Cal. 2012);
Gomez, 2014 WL 1330528 at *3 (“Petitioner has
already had at least three opportunities to avert dismissal
by simply signing and verifying a copy of his own
petition.”).
The
Court concludes that dismissal of the action is appropriate
here. Petitioner failed to sign his original petition. The
Attorney General noted this and requested that the defect be
cured or that the action be dismissed. The assigned
magistrate judge gave Petitioner several chances to do so.
Petitioner apparently ignored all of this. In addition,
Petitioner did not personally sign other case-commencing
documents, has not actively participated in the litigation,
and did not augment his legal arguments in response to the
other aspects of the Attorney General’s submission.
Petitioner’s failure to comply with Habeas Rule 2(c),
Section 2242, and this Court’s orders justifies
dismissal of the action.
Dismissal
is also proper under Federal Rule of Civil Procedure 41. Rule
41(b) provides that if a party “fails to prosecute or
to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.”
Dismissal also may be ordered by the Court sua
sponte. Link v. Wabash R.R., 370 U.S. 626,
629-30 (1962). Dismissal of a civil action under Rule 41 may
be appropriate to advance the public’s interest in the
expeditious resolution of litigation, the court’s need
to manage its docket, and to avoid the risk of prejudice to
defendants. Omstead v. Dell, Inc., 594 F.3d 1081,
1084 (9th Cir. 2010). Additionally, a court should consider
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