United States District Court, E.D. California
DERRICK L. JOHNSON, Petitioner,
SCOTT KERNAN, Secretary of California Department of Corrections and Rehabilitation, et al., Respondents.
FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION
FOR FAILURE TO COMPLY [TEN-DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
3, 2019, Petitioner filed a petition for writ of habeas
corpus in this Court. (Doc. 1.) A preliminary screening of
the petition revealed that the petition failed to present any
cognizable grounds for relief or any facts in support.
Therefore, on September 24, 2019, the Court dismissed the
petition and granted Petitioner thirty days to file a first
amended petition. (Doc. 10.) More than thirty days have
passed, and Petitioner has failed to comply. Therefore, the
Court will recommend the action be
Rule 110 provides that a “[f]ailure of counsel or of a
party to comply with these Rules or with any order of the
Court may be grounds for imposition by the Court of any and
all sanctions authorized by statute or Rule or within the
inherent power of the Court.” District courts have the
inherent power to control their dockets and “in the
exercise of that power, they may impose sanctions including,
where appropriate . . . dismissal of a case.”
Thompson v. Housing Auth., 782 F.2d 829, 831 (9th
Cir. 1986). A court may dismiss an action, with prejudice,
based on a party's failure to prosecute an action,
failure to obey a court order, or failure to comply with
local rules. See, e.g., Ghazali v.
Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
noncompliance with local rule); Ferdik v. Bonzelet,
963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure
to comply with an order requiring amendment of complaint);
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
1988) (dismissal for failure to comply with local rule
requiring pro se plaintiffs to keep court apprised of
address); Malone v. U.S. Postal Service, 833 F.2d
128, 130 (9th Cir. 1987) (dismissal for failure to comply
with court order); Henderson v. Duncan, 779 F.2d
1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution
and failure to comply with local rules).
determining whether to dismiss an action for lack of
prosecution, failure to obey a court order, or failure to
comply with local rules, the court must consider several
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 Respondents; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
alternatives. Ghazali, 46 F.3d at 53;
Ferdik, 963 F.2d at 1260-61; Malone, 833
F.2d at 130; Thompson, 782 F.2d at 831;
Henderson, 779 F.2d at 1423-24.
instant case, the Court finds that the public's interest
in expeditiously resolving this litigation and the
Court's interest in managing the docket weigh in favor of
dismissal because this case has been pending since July 3,
2019. The third factor, risk of prejudice to Respondent, also
weighs in favor of dismissal because a presumption of injury
arises from any unreasonable delay in prosecuting an action.
Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.
1976). The fourth factor, public policy favoring disposition
of cases on their merits, is greatly outweighed by the
factors in favor of dismissal. Finally, a court's warning
to a party that failure to obey the court's order will
result in dismissal satisfies the “consideration of
alternatives” requirement. Ferdik, 963 F.2d at
1262. The Court's order dated September 24, 2019,
expressly stated: “Failure to comply with this order
will result in dismissal of the action.” (Doc. 10 at
3.) Thus, Petitioner had adequate warning that dismissal
would result from his noncompliance with the Court's
the Court RECOMMENDS that this action be DISMISSED for
Petitioner's failure to comply with court orders and
failure to prosecute.
Findings and Recommendation is submitted to the assigned
District Court Judge, pursuant to the provisions of 28 U.S.C.
§ 636 (b)(1)(B) and Rule 304 of the Local Rules of
Practice for the United States District Court, Eastern
District of California. Within ten days after service of the
Findings and Recommendation, Petitioner may file written
objections with the Court. Such a document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendation.” The Court will then
review the Magistrate Judge's ruling pursuant to 28
U.S.C. § 636 (b)(1)(C). Petitioner is advised ...