United States District Court, C.D. California
Presented by: HON. MICHAEL R. WILNER UNITED STATES MAGISTRATE
ORDER DISMISSING ACTION
GEORGE H. WU UNITED STATES DISTRICT JUDGE
Court grants the government's unopposed motion to dismiss
this federal habeas action.
* * *
formerly was a federal prisoner at the prison facility in
Victorville. He filed a habeas action (28 U.S.C. §
2241) challenging the decision of the federal Bureau of
Prisons (BOP) to impose discipline against him. Petitioner
was found to have violated a prison rule by allowing another
inmate to use his telephone account. The penalty imposed on
Petitioner consisted of a loss of 27 days of good time
credit, a suspended period of segregation, and the loss of
other privileges. (Docket # 8 at 4.)
government moved to dismiss the action. (Id.) The
government argued that Petitioner failed to exhaust his claim
administratively and did not properly appeal the adverse
decision with the BOP. Additionally, because the BOP recently
issued an amended order to correctly identify the name of an
agency employee involved in the original decision, the
government contends that Petitioner's federal action is
not ripe. (Id. at 8.)
filed an abbreviated response to the dismissal motion.
(Docket # 11.) Although entitled “opposition to motion
to dismiss and request stay until adm. [sic] remedy complete,
” the gist of Petitioner's submission was to
request that the Court order a variety of relief against the
BOP. In other contemporaneous filings, Petitioner asked for
an indefinite stay of the federal case and the appointment of
a lawyer. (Docket # 10, 13.)
Judge Wilner issued several orders denying the requests.
(Docket # 12, 14, 16.) Judge Wilner noted that Petitioner
offered no evidence or cogent argument as to why either a
stay or appointment of a lawyer was necessary. The Court also
observed that Petitioner's “‘opposition'
to the motion to dismiss ignored the substance of the
government's argument.” (Docket # 12 at 1.) The
Court extended the deadline by which Petitioner was to submit
“a coherent response” to the motion several
times. (Docket # 12, 16.) However, Petitioner ultimately did
not file any opposition to the government's exhaustion
Local Rule of Court 7-12 states that, after a party files a
motion with the Court, the failure to file a required
response “may be deemed consent to the granting [ ] of
the motion.” That rule applies to the present dismissal
motion. The government plausibly established that Petitioner
failed to exhaust his claims properly within the BOP before
seeking federal habeas relief. Despite several warnings,
Petitioner did not file a response that addressed the
government's argument. Petitioner's failure to
respond to the dismissal motion signifies his consent to the
dismissal of the action.
Dismissal is also proper under Rule 41(b). Rule 41(b)
provides that if a plaintiff “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 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); Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th
Cir. 1992) (analyzing factors supporting dismissal of Section
failure to prosecute this action warrants dismissal under
Rule 41(b). Petitioner failed to respond to the
government's dismissal motion and the Court's order
requiring him to do so. (Docket # 12, 14, 16.) The public,
the Court, and the government have a significant interest in
the resolution of this case. Petitioner, by contrast, has
demonstrated a lack of interest in pursuing the action to a
decision on the merits. Moreover, given Petitioner's
failure to respond to the Court's order, there are no
“less drastic sanctions” available to the Court
other than a dismissal of the action. Omstead, 594
F.3d at 1084. Rule 41 therefore provides an additional basis
for dismissing the action.
Finally, were the Court to reach the merits of the
government's dismissal motion, it is apparent that
Petitioner is not entitled to relief. Federal prisoners
generally must exhaust their administrative remedies before
filing a federal habeas petition under 28 U.S.C. § 2241.
Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir.
1986); Jiau v. Poole, 590 F. App'x 689, 690 (9th
Cir. 2015). A district court has discretion to dismiss an
unexhausted § 2241 petition without prejudice, or excuse
the requirement and reach the merits. Jiau, 590 F.
App'x at 690; Pavlovich v. Johnson, No. CV
16-749 PSG (SS), 2016 WL 3410195 at *2 (C.D. Cal. 2016).
However, a court's discretion to excuse the failure to
exhaust is imited to situations where administrative remedies
are inadequate or ineffective, pursuing them would be futile,
or irreparable injury would result. Pavlovich, 2016
WL 3410195 at *2; Laing v. Ashcroft, 370 F.3d 994,
1000-01 (9th Cir. 2004).
claim for relief is unexhausted. The government convincingly
demonstrates that Petitioner did not properly seek
administrative review of the adverse disciplinary ruling
before initiating this federal action. (Docket # 11 at 5-7.)
Further, after the filing of the action, the government
corrected a minor error in the hearing decision; this
reopened Petitioner's ability to present his claims
administratively. (Id. at 8.) He has not done so,
though. The ...