Johnson v. Holland

          MEMORANDUM OPINION AND ORDER DISMISSING ACTION

          HON. DALE S. FISCHER, UNITED STATES DISTRICT JUDGE.

         I. BACKGROUND AND SUMMARY

         On January 29, 2016, petitioner, who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus (“Original Petition”). Although it appears that petitioner is now on parole (Docket No. 10), at the time he filed the Original Petition, petitioner was apparently in custody in state prison on a three-year sentence imposed in October 2014, in connection with his September 3, 2014 guilty plea and conviction in Orange County Superior Court on a charge of violating California Penal Code section 290 (“Section 290”), by failing to reregister as a sex offender (“State Case”). (Original Petition at 2). Although the Original Petition was not a model of clarity, it was liberally construed to challenge the sentence imposed upon petitioner in the State Case as such sentence apparently requires petitioner to register as a sex offender under Section 290 as a condition of parole.

         On February 4, 2016, the Magistrate Judge issued an Order to Show Cause (“First OSC”) which advised petitioner that the Original Petition was deficient for reasons described in the First OSC, directed petitioner to show cause why the Original Petition should not be dismissed based upon such deficiencies, afforded petitioner leave to file a first amended petition for writ of habeas corpus, and directed the Clerk to provide petitioner with a blank current Central District habeas petition form for petitioner’s use.^[1] The First OSC further expressly advised petitioner that the failure timely to respond thereto may result in the dismissal of the Original Petition based upon the referenced deficiencies and/or the dismissal of this action based upon petitioner’s failure to comply with the First OSC and/or his failure to prosecute.

         On February 23, 2016, petitioner formally filed what has been construed to be a First Amended Petition for Writ of Habeas Corpus (“First Amended Petition” or “FAP”).^[2] On April 25, 2016, the Magistrate Judge issued another Order to Show Cause (“Second OSC”) which advised petitioner that the First Amended Petition was deficient for reasons described in the Second OSC, directed petitioner, by not later than May 11, 2016, to show cause why the First Amended Petition should not be dismissed based upon such deficiencies, afforded petitioner leave to file a proper second amended petition for writ of habeas corpus, and directed the Clerk to provide petitioner with a blank current Central District habeas petition form for petitioner’s use.^[3] The Second OSC further expressly advised petitioner that the failure timely to respond thereto may result in the dismissal of the First Amended Petition based upon the referenced deficiencies therein and/or the dismissal of this action based upon petitioner’s failure to comply with the Second OSC and/or his failure to prosecute.

         Although the deadline to respond to the Second OSC expired more than two months ago, petitioner has not responded thereto. Nor has petitioner filed a second amended petition, or otherwise communicated with the Court since the issuance of the Second OSC.

         As discussed below, this action is dismissed due to petitioner’s unreasonable failure to prosecute and petitioner’s failure to comply with the Second OSC.

         II. PERTINENT LAW

         It is well-established that a district court may sua sponte dismiss an action where a plaintiff has failed to comply with a court order and/or unreasonably failed to prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-33 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.) (as amended), cert. denied, 506 U.S. 915 (1992); see also McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) (district court may sua sponte dismiss action “only for an unreasonable failure to prosecute”) (citations omitted); see also Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (sua sponte dismissal pursuant to Fed. R. Civ. P. 41(b) proper sanction in cases where a plaintiff is notified of deficiencies in complaint and is given “the opportunity to amend [the complaint] or be dismissed” but the plaintiff “[does] nothing”) (citations omitted; emphasis in original).^[4]

         In determining whether to dismiss an action for failure to prosecute or failure to comply with court orders, a district court must consider several factors, namely (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 defendant/ respondent; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders).

         Dismissal is appropriate under the foregoing analysis “where at least four factors support dismissal . . . or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). Where a plaintiff is proceeding pro se, however, the court must first notify the plaintiff of the deficiencies in the complaint so that the plaintiff has an opportunity “to amend effectively.” Ferdik, 963 F.2d at 1261 (citation omitted). In addition, where a Magistrate Judge originally dismissed the complaint with leave to amend, the District Judge must review that decision before dismissing the entire action. See McKeever, 932 F.2d at 797 (“While the magistrate can dismiss complaints with leave to amend, the district court necessarily must review that decision before dismissing the entire action.”). A district judge may not dismiss an action for failure to comply with a court order (e.g., the Magistrate Judge’s order to file an amended pleading) or for unreasonable failure to prosecute if the initial decision to dismiss a complaint was erroneous. Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (citing id.).

         III. DISCUSSION AND ORDERS

         First, the Court has reviewed the First OSC and the Second OSC (collectively “Orders to Show Cause”), agrees with the Orders to Show Cause, and finds that the Orders to Show Cause were properly issued for the reasons discussed therein.

         Second, petitioner has been notified that the Original Petition and the First Amended Petition are deficient in multiple respects, has been granted leave to file a proper second amended petition and has been afforded the opportunity to show good cause why dismissal of the Original Petition, the ...