United States District Court, C.D. California
MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS FOR FAILURE TO PROSECUTE
HONORABLE JOHN F. WALTER UNITED STATES DISTRICT JUDGE
October 19, 2016, petitioner Angel Garcia filed a Petition
for Writ of Habeas Corpus by a Person in State Custody
pursuant to 28 U.S.C. § 2254 (“Petition”).
Petitioner left the Petition entirely blank except for the
caption page, his signature, and certain ministerial
November 3, 2016, this Court, having screened the Petition,
found the Petition subject to dismissal because by leaving it
blank, petitioner failed to state what conviction he is
challenging, the court in which he was convicted, or any
indication of what claims he intended to raise as his basis
for habeas relief. Accordingly, the Court dismissed the
Petition with leave to file a First Amended Petition by
December 5, 2016. Petitioner failed to file a First Amended
Petition, or any other communication with the Court, by the
December 5, 2016 deadline.
provide petitioner with another opportunity to address the
deficiencies of the Petition discussed in the Court's
November 3, 2016 Order prior to dismissal, on December 22,
2016, the Court issued an Order to Show Cause
(“OSC”) why the Petition should not be dismissed
for failure to prosecute. The Court ordered petitioner to
show cause, on or before January 12, 2017, why this action
should not be dismissed for failure to prosecute and/or
comply with a court order. Petitioner was warned in the OSC
that failure to timely file and serve a response as directed
would be deemed by the Court as consent to the dismissal of
his Petition and this action. More than two weeks having
passed since the January 12, 2017 deadline, petitioner has
not responded to the Court's OSC, and has not
communicated with the Court since the filing of his Petition
on October 19, 2016. Petitioner has thus failed to prosecute
this action, in contravention the Court's orders. As
such, this action will be dismissed without prejudice.
of the Rules Governing Section 2254 Cases authorizes the
Court to summarily dismiss a habeas petition “[i]f it
plainly appears from the petition and any exhibits annexed to
it that the petitioner is not entitled to relief in the
district court.” Rule 4 also authorizes dismissals on
procedural grounds. See 28 U.S.C. foll. § 2254,
Rule 4 Advisory Committee Note (1976); White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Additionally,
Rule 2(c) of the Rules Governing Section 2254 Cases in the
United States District Courts affirmatively requires a
prisoner to file a petition that “must: (1) specify all
the grounds for relief available to the petitioner; [and] (2)
state the facts supporting each ground.” See also
James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)
(“Conclusory allegations which are not supported by a
statement of specific facts do not warrant habeas
relief.”) (citation omitted). Here, the Petition must
be dismissed because it fails to state what conviction
petitioner is challenging, the court in which he was
convicted, any facts supporting any grounds he may wish to
assert, or any indication of what claims he intended to raise
as his basis for habeas relief. Moreover, as discussed above,
petitioner has failed to respond to the Court's orders
and has therefore failed to prosecute this action.
well established that a district court has authority to
dismiss a petitioner's action because of his or her
failure to prosecute or to comply with court orders.
See Fed. R. Civ. P. 41(b); Link v. Wabash R.R.
Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734
(1962) (a court's authority to dismiss for lack of
prosecution is necessary to prevent undue delays in the
disposition of pending cases and to avoid congestion in the
calendars of the district courts); Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (weighing
factors); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
(9th Cir. 1992) (a district court may dismiss an action for
failure to comply with any order of the court). When
determining whether to dismiss a case for failure to comply
with a court order, the district court weighs five factors
including: “(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 alternatives.” Ferdik, 963 F.2d
1260-61 (citation and internal quotation omitted).
case, the Court dismissed the Petition with leave to amend on
November 3, 2016, and informed petitioner that his Petition
was subject to dismissal for failing to state any ground for
relief or any facts supporting any such grounds. Petitioner
failed to file a First Amended Petition by the December 5,
2016 deadline. On December 22, 2016, Petitioner was then
ordered to show cause why his Petition should not be
dismissed for failure to prosecute. Petitioner failed to file
a response to the Court's OSC by the January 12, 2017
deadline. Petitioner was warned in both the Court's
November 3, 2016 Order and the Court's December 22, 2016
OSC that his failure to respond as directed may result in
dismissal of this action without prejudice, but petitioner
failed to respond as ordered. Petitioner's conduct
indicates he does not intend to prosecute this case
diligently, or at all, causing this action to languish, and
impermissibly allowing petitioner to control the pace of the
docket rather than the Court. See Pagtalunan, 291
F.3d at 642 (“It is incumbent upon the Court to manage
its docket without being subject to routine noncompliance of
litigants.”). Thus, the first and second factors weigh
in favor of dismissal. See Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)
(“[T]he public's interest in expeditious resolution
of litigation always favors dismissal.”).
rebuttable presumption of prejudice to defendants arises when
a plaintiff unreasonably delays prosecution of an action.
See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir.
1994). Nothing suggests that such a presumption is
unwarranted here. Where a party offers a poor excuse for
failing to comply with a court's order, the prejudice to
the opposing parties is sufficient to favor dismissal.
See Yourish, 191 F.3d at 991-92. Here, petitioner
has not offered any excuse for his failure to adequately
respond to the Court's orders. Thus, the third factor
also weighs in favor of dismissal.
It is a
plaintiff's or petitioner's responsibility to move a
case toward a disposition at a reasonable pace and to avoid
dilatory and evasive tactics. See Morris v. Morgan
Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). By
failing to respond as ordered to either the Court's
November 3, 2016 Order or the December 22, 2016 OSC,
petitioner has not discharged this responsibility.
Additionally, the Court cannot hear this matter on the merits
because petitioner has left the Petition almost entirely
blank, thereby failing to state any grounds for relief or any
facts supporting any such grounds. In these circumstances,
the public policy favoring resolution of disputes on the
merits does not outweigh petitioner's failure to respond
to Court orders or move the case forward.
fifth factor, the availability and consideration of less
drastic sanctions, ordinarily counsels against dismissal.
“Alternative sanctions include: a warning, a formal
reprimand, placing the case at the bottom of the calendar, a
fine, the imposition of costs or attorney fees, the temporary
suspension of the culpable counsel from practice before the
court, . . . dismissal of the suit unless new counsel is
secured[, ] . . . preclusion of claims or defenses, or the
imposition of fees and costs upon plaintiff's counsel. .
. .” Malone v. U.S. Postal Serv., 833 F.2d
128, 132 n.1 (9th Cir. 1987) (citation and internal quotation
omitted). Warning the petitioner that failure to obey a court