(HC) Calloway, Jr. v. The People of the State of California

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 TONY CARL CALLOWAY, JR., ) Case No.: 1:24-cv-0330 JLT HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS, DISMISSING 13 v. ) PETITION FOR WRIT OF HABEAS CORPUS, ) AND DIRECTING CLERK OF COURT TO 14 THE PEOPLE OF THE STATE OF ) CLOSE CASE CALIFORNIA, ) 15 ) (Docs. 1, 6) ) Respondent. ) [16] 17 Tony Carl Calloway, Jr., a state prisoner, is proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254 . (Doc. 1.) However, after Petitioner filed his 19 petition and the Court issued an order granting him permission to proceed in forma pauperis, the 20 U.S. Postal Service returned the Court’s mail as “Undeliverable, RTS, Inactive, Unable to 21 Forward” on April 2, 2024. The Postal Service also returned the order granting Petitioner leave 22 to amend his petition on April 9, 2024. 23 The assigned magistrate judge found Petitioner failed to prosecute this action and failed to 24 comply with the Local Rules through his failure “to keep the Court appraised of his current 25 address.” (Doc. 6 at 1; see also id. at 2 .) The magistrate judge observed that “Petitioner was 26 notified of his obligation to keep the Court informed of his address and advised that the Court 27 would dismiss an action without prejudice if Petitioner did not update his address within sixty28 three (63) days.” (Id. at 2.) In addition, the magistrate judge observed that “[p]recedent supports 1 a dismissal of a case when a litigant does not keep the court appraised on his address.” (Id., citing 2 Carey v. King, 856 F.2d 1439 (9th Cir. 1988).) Therefore, the magistrate judge recommended the 3 action be dismissed without prejudice. (Id. at 3.) The Court served the Findings and 4 Recommendations upon Petitioner at the only address of record. The Postal Service also returned 5 the Findings and Recommendations on June 26, 2024. 6 According to 28 U.S.C. § 636 (b)(1)(C), this Court performed a de novo review of this 7 case. Having carefully reviewed the matter, the Court concludes the findings that Petitioner 8 failed to prosecute the action and failed to comply with the Local Rules are supported by the 9 record and proper analysis. Importantly, however, the magistrate judge did not provide any 10 analysis related to the propriety of terminating sanctions in this action. The Court must make 11 additional findings regarding terminating sanctions for Petitioner’s failure to prosecute and failure 12 to comply with the Local Rules. See, e.g., Malone v. U.S. Postal Service, 833 F.2d 128 , 131-132 13 (9th Cir. 1987) (“The district court abuses its discretion if it imposes a sanction of dismissal 14 without first considering the impact of the sanction and the adequacy of less drastic sanctions.” 15 [citation omitted].) 16 To determine whether to impose terminating sanctions, the Court must consider several 17 factors, including: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 18 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 19 favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 20 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute); 21 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992); Thompson v. Housing Authority of 22 Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 23 The public’s interest in expeditiously resolving this litigation and the Court’s interest in 24 managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983 , 25 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 26 dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 27 managing their dockets without being subject to noncompliant litigants). This Court cannot, and 28 will not hold, this case in abeyance where it is unable to communicate with Petitioner. See 1 Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Thus, these factors weigh in 2 favor of dismissal. 3 To determine whether the defendant suffer prejudice, the Court must examine whether 4 Petitioner’s actions impair the ability of the case to move forward or “threaten to interfere with 5 the rightful decision of the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting 6 Corp., 769 F.2d 611, 618 (9th Cir. 1985)). Significantly, a presumption of prejudice arises when 7 a petitioner unreasonably delays the prosecution of an action. See Anderson v. Air West, 542 F.2d 8 522, 524 (9th Cir. 1976). Therefore, this factor also weighs in favor of dismissal. 9 The Court “abuses its discretion if it imposes a sanction of dismissal without first 10 considering the impact of the sanction and the adequacy of less drastic sanctions.” United States 11 v. Nat’l Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, a court’s 12 warning to a party that the failure to obey could result in dismissal satisfies the “consideration of 13 alternatives” requirement. See Malone, 833 F.2d at 133 ; Ferdik, 963 F.2d at 1262 . The Ninth 14 Circuit explained, an individual “can hardly be surprised” by a sanction of dismissal “in response 15 to willful violation of a pretrial order.” Malone, 833 F.2d at 133 . As the magistrate judge noted, 16 the Court warned Petitioner that the action would be dismissed without prejudice if he did not 17 keep the Court informed of his mailing address. (Doc. 6 at 2, citing Doc. 2-2 at 5, ¶13.) 18 Importantly, the Court need only issue one warning to satisfy the requirements considering 19 alternative sanctions. Ferdik, 963 F.2d at 1262 . Consequently, this factor weighs in favor of 20 dismissal of the action. See id.; Henderson, 779 F.2d at 1424 . 21 Given Petitioner’s failure to prosecute the action and failure to comply with the Local 22 Rules, the policy favoring disposition of cases on their merits is outweighed by the factors in 23 favor of dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy 24 favoring disposition of cases on their merits… weighs against dismissal, it is not sufficient to 25 outweigh the other four factors”). Thus, the factors identified by the Ninth Circuit weigh in favor 26 of terminating sanctions. 27 Based upon the foregoing, the Court ORDERS: 28 1. The Findings and Recommendations dated June 17, 2024 (Doc. 6) are ADOPTED. 1 2. The petition for writ of habeas corpus (Doc. 1) is DISMISSED without prejudice. 2 3. The Clerk of the Court is to CLOSE the case. [3] 4 IT IS SO ORDERED. 5 Dated: _ July 9, 2024 Cerin | Tower TED STATES DISTRICT JUDGE