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King v. United States

United States District Court, C.D. California

January 9, 2020

SCOTT KAHALA KING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER DISMISSING ACTION WITHOUT PREJUDICE

          HONORABLE CHRISTINA A. SNYDER SENIOR UNITED STATES DISTRICT JUDGE.

         I. BACKGROUND AND SUMMARY

         On October 8, 2019, petitioner Scott Kahala King, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”). As the Petition was deficient in multiple respects, this Court summarily dismissed it with leave to amend on November 5, 2019 (“November Order”). The November Order described the reasons the Petition was deficient, afforded petitioner leave to file a First Amended Petition within fourteen days if he wished to pursue this matter, directed him to file a notice of dismissal by such deadline if he elected not to proceed with this action, and directed the Clerk to provide petitioner with a blank current Central District of California habeas petition form for petitioner's use.[1]The November Order further expressly cautioned petitioner in bold face print that the failure timely to file a First Amended Petition or notice of dismissal may result in the dismissal of this action based upon the identified deficiencies in the Petition, petitioner's failure to obey the Court's order, and/or petitioner's failure to prosecute.

         On November 18, 2019, petitioner filed a Request for Extension of Time which the Magistrate Judge granted on November 19, 2019 (“Extension Order”). The Extension Order extended petitioner's deadline to comply with the November Order - that is to file a First Amended Petition which comports with the November Order or a signed Notice of Dismissal - to December 20, 2019. The Extension Order further expressly cautioned petitioner in bold face print that the failure timely to comply with the November Order, as extended by the Extension Order, may result in the dismissal of this action based upon the deficiencies in the Petition identified in the November Order, petitioner's failure to obey the Court's orders, and/or petitioner's failure to prosecute.

         Although the extended deadline to file a First Amended Petition or notice of dismissal expired more than two weeks ago, to date, petitioner has not filed a First Amended Petition or a notice of dismissal, or otherwise communicated with the Court since the issuance of the Extension Order.

         As discussed below, this action is dismissed due to petitioner's unreasonable failure to prosecute and petitioner's failure to comply with the November Order and the Extension Order.

         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).[2]

         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 his pleading so that the plaintiff has an opportunity “to amend effectively.” Ferdik, 963 F.2d at 1261 (citation omitted). A district judge may not dismiss an action for failure to comply with a court order or for unreasonable failure to prosecute if the initial decision to dismiss a pleading was erroneous. Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (citing id.).

         III. DISCUSSION AND ORDERS

         First, the issuance of the November Order dismissing the Petition with leave to amend was proper and such order was not erroneous. See supra note 1.

         Second, the November Order explained in detail why the Petition was deficient in multiple respects, granted petitioner leave to file a proper First Amended Petition (or a notice of dismissal if he did not wish to pursue this action), and expressly cautioned that the failure timely to do so may result in dismissal of this action. The Extension Order extended petitioner's deadline to file a First Amended Petition or a notice of dismissal and again expressly cautioned petitioner that the failure timely to do so may result in dismissal of this action based upon petitioner's failure to prosecute and/or his failure to comply with the Court's orders. Notwithstanding the foregoing, petitioner has not communicated with the Court and has done nothing to prosecute this action since the issuance of the Extension Order.

         Finally, upon consideration of the five factors noted above, the Court finds that petitioner's unreasonable failure to prosecute his case and failure to comply with the November Order and the Extension Order warrants dismissal. The first two factors - the public's interest in expeditiously resolving this litigation and the Court's interest in managing the docket, weigh in favor of dismissal. The Court cannot hold this case in abeyance indefinitely awaiting petitioner's response to the Court's directives. The third factor, risk of prejudice to respondent, also weighs in favor of dismissal since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, the public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, as ...


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