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Keefe v. Fletcher

United States District Court, D. Montana, Missoula Division

December 4, 2017

JORDAN KEEFE, Petitioner,
v.
MICHAEL FLETCHER, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondent.

          FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch, United States Magistrate Judge

         This case comes before the Court on Petitioner Jordan Keefe's application for writ of habeas corpus under 28 U.S.C. §2254, filed September 25, 2017. Keefe is a state prisoner proceeding pro se.

         I. Background

         Keefe's petition challenges his state convictions for Criminal Endangerment and Sexual Intercourse without Consent, but did not use this Court's standard form. Because it was unclear whether or not Keefe actually intended to file in this Court, or if his application was meant for filing in state court, Keefe was directed to file an Amended Petition using this Court's standard form. (Doc. 5). Keefe timely filed an Amended Petition. (Doc. 6).

         Following review of Keefe's Amended Petition, the Court determined that Keefe's petition was likely time-barred and procedurally defaulted. Keefe was ordered to show cause as to why his petition should not be dismissed and was directed to the ways in which he might make such a showing. (Doc. 8 at 5-7). Keefe filed a motion for extension of time requesting an additional fifteen days to respond to this Court's order. (Doc. 9). Keefe's request was granted and his response was to be filed on or before November 17, 2017. (Doc. 10). Keefe has yet to respond to the Order.

         II. Dismissal for Failure to Prosecute

         The Federal Rules of Civil Procedure apply in a habeas action to the extent they are not inconsistent with the Rules Governing Section 2254 Cases in the United States District Courts or other applicable law. See Rule 11, Section 2254 Rules; Mayle v. Felix, 545 U.S. 644, 654 (2005). Fed.R.Civ.P. 41(b) authorizes the Court to dismiss an action "[i]f the plaintiff fails to prosecute" the action. The Court may dismiss a case on its own motion without awaiting a defense motion. See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).

         In determining whether Petitioner's failure to prosecute warrants dismissal of the case, the Court must weigh the following five 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 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). "The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).

         "The public's interest in expeditious resolution of litigation always favors dismissal." Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Despite being granted an extension seeking a specific timeline, Keefe has failed to file his response within the requested timeframe. This factor weighs in favor of dismissal.

         Likewise, the second factor supports dismissal. "The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest." Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002). The Court cannot manage its docket if Keefe refuses to comply with Court's orders. Keefe's case has consumed judicial resources time that could have been better spent on other matters. Therefore, this factor favors dismissal.

         The third factor requires the Court to weigh the risk of prejudice to the Defendants. "To prove prejudice, a defendant must establish that plaintiffs actions impaired defendant's ability to proceed to trial or threatened to interfere with the rightful decision of the case." Malone v. United States Postal Service, 833 F.2d 128, 131 (9th Cir. 1987). Mr. Keefe's refusal to comply with the Court's order makes prejudice a foregone conclusion. The longer this matter sits, the more prejudice to Defendants.

         The Court has considered less drastic alternatives. Alternatives may include "allowing further amended complaints, allowing additional time, or insisting that appellant associate experienced counsel." Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981). Although less drastic alternatives to dismissal should be considered, the Court is not required to exhaust all such alternatives prior to dismissal. Id. Mr. Keefe was afforded the opportunity to amend his petition and was given a filing extension for an amount of time he requested. Mr. Keefe has not responded to the Court's show cause order. At this juncture, the Court can envision no further alternatives to dismissal.

         The last factor weighs against dismissal because public policy favors disposition of cases on their merits. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). But in light of the other four factors favoring dismissal, the weight of this factor is slight. The Court will therefore recommend that this matter be dismissed for failure to prosecute, pursuant to Fed. F. Civ. P. 41(b). Mr. Keefe has failed to comply with the Court's order.

         III. Certificate ...


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