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Stewart v. Fletcher

United States District Court, D. Montana, Butte Division

January 8, 2019

JAMES STEWART, 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 James Stewart's application for writ of habeas corpus under 28 U.S.C. §2254, filed August 8, 2017. Stewart is a state prisoner proceeding pro se.

         I. Background

         Stewart's petition challenges his state conviction for Partner Family Member Assault handed down in Montana's Second Judicial District, Butte Silverbow County. (Doc. 1.) Following review of Stewart's Petition, the Court determined the claims presented appeared to be procedurally defaulted. Stewart was ordered to show cause as to why his petition should not be dismissed and was advised of the ways in which he might make such a showing. (Doc. 11 at 5-8). Stewart 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 provided adequate time, Stewart has failed to file his response. 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 Stewart refuses to comply with Court's orders. Stewart'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 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). Stewart'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. Stewart was afforded the opportunity to supplement his petition, see (Docs. 5, 7-9), and was provided adequate time to prepare his response. Yet Mr. Stewart has failed to respond 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), for failure to comply with the Court's order.

         III. Certificate of Appealability

         “The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules governing § 2254 Proceedings. A COA should issue as to those claims on which a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is satisfied if “jurists of reason could disagree with the district court's resolution of [the] constitutional claims” or “conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Where a claim is dismissed on procedural grounds, the court must also decide whether ...


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