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Webster v. Salmonson

United States District Court, D. Montana, Helena Division

February 28, 2018

MYWOND WEBSTER, Petitioner,
v.
JAMES SALMONSON, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE

         This case comes before the Court on Petitioner Mywond Webster's application for writ of habeas corpus under 28 U.S.C. §2254, filed January 31, 2018. Webster is a state prisoner proceeding pro se.

         I. Motion to Proceed in Forma Pauperis

         Webster has moved this Court to proceed in forma pauperis. (Doc. 2). Because there is no need to delay this matter further, Webster's motion will be granted.

         II. Background

         Webster's petition appears to challenge actions taken by the Montana and Utah Board of Pardons and Parole, but he did not use this Court's standard form. (Doc. 1). Because the Court required supplemental information regarding his claims, Webster was directed to file an Amended Petition using this Court's standard form. (Doc. 3). Webster did not timely respond to this Court's order. Additionally, it appears that Webster was transferred from the Montana State Prison, but he failed to update his address with this Court as directed. See (Docs. 3 at 2 and 4).[1]

         III. 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). Webster has failed to file his response within the requisite timeframe or keep the Court appraised of his current address. 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 Webster refuses to comply with Court's orders. Webster's case has consumed judicial resources and 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 plaintiff's 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. Webster'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. Webster was afforded the opportunity to amend his petition and was given an adequate amount of time to do so. Mr. Webster has not responded to the Court's show cause order nor has he updated his current address. 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. Webster has ...


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