United States District Court, D. Montana, Butte Division
FINDINGS AND RECOMMENDATION OF UNITED STATES
Jeremiah C. Lynch, United States Magistrate Judge.
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.
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.
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).
Despite being provided adequate time, Stewart has failed to
file his response. 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 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.
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.
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.
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.
Certificate of Appealability
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