United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATION OF UNITED STATES
Jeremiah C. Lynch, United States Magistrate Judge
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.
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).
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.
Dismissal for Failure to Prosecute
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).
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.
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
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.
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.
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
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.