United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON UNITED STATES MAGISTRATE JUDGE
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.
Motion to Proceed in Forma Pauperis
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.
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).
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
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.
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.
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.
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.
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 ...