United States District Court, D. Nevada
GENE A. ALLEN, Petitioner,
JAMES G. COX, et al., Respondents.
ROBERTO C. JONES United States District Judge.
a habeas corpus action under 28 U.S.C. § 2254.
Petitioner Gene Allen alleges violations of his due process
rights in parole hearings. The Court granted Respondents'
motion to dismiss for failure to exhaust, giving Petitioner
30 days (until April 7, 2017) to choose a stay and abeyance
or dismissal without prejudice and warning him that failure
to timely comply could result in dismissal. Petitioner failed
to comply. Instead, he appealed. The Court of Appeals
dismissed for lack of jurisdiction. Petitioner also filed
several other motions and letters, including a pro
se motion to dismiss appointed counsel, which the Court
denied because Petitioner had identified no conflict of
interest. In that order, the Court again ordered Plaintiff to
choose a stay and abeyance or dismissal without prejudice
within 30 days (by December 20, 2017), again warning him that
failure to timely comply could result in dismissal. He again
failed to comply. Rather, on December 14, 2017, he filed a
pro se motion asking the Court to adjudicate the
Petition. Petitioner's counsel (the Federal Public
Defender's Office) has filed a declaration, explaining
that it has mailed the Court's latest order to Petitioner
but that he has refused to communicate with the office.
Petitioner has filed a pro se reply stating,
“Mr. Allen will proceed no further with the
representation of the FPD.” He has also filed what
appears to be a motion to strike the First Amended Petition.
This shows that Petitioner is aware of the Court's order
(the second such order) requiring him to choose between
dismissal without prejudice or a stay and abeyance. Yet he
has neither identified any choice to the Court directly (in
any of his several pro se filings) or via his
Court dismisses the case for failure to prosecute. District
courts have the inherent power to control their dockets and
“[i]n the exercise of that power, they may impose
sanctions including, where appropriate . . . dismissal”
of a case. Thompson v. Hous. Auth. of City of L.A.,
782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an
action with prejudice based on a party's failure to
prosecute an action, failure to obey a court order, or
failure to comply with local rules. Ghazali v.
Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
noncompliance with local rule); Ferdik v. Bonzelet,
963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure
to comply with an order requiring amendment of complaint);
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
1988) (dismissal for failure to comply with local rule
requiring pro se plaintiffs to keep court apprised of
address); Malone v. U.S. Postal Serv., 833 F.2d 128,
130 (9th Cir. 1987) (dismissal for failure to comply with
court order); Henderson v. Duncan, 779 F.2d 1421,
1424 (9th Cir. 1986) (dismissal for lack of prosecution and
failure to comply with local rules).
determining whether to dismiss for one of these reasons, a
court must consider several 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 alternatives. Thompson,
782 F.2d at 831; Henderson, 779 F.2d at 1423-24;
Malone, 833 F.2d at 130; Ferdik, 963 F.2d
at 1260-61; Ghazali, 46 F.3d at 53. Here, the Court
finds that the first two factors, the public's interest
in expeditiously resolving this litigation and the
Court's interest in managing its docket, weigh in favor
of dismissal. Petitioner has twice over the last year
completely ignored the Court's instructions to choose
between dismissal without prejudice or a stay and abeyance.
The third factor, risk of prejudice to Defendants, also
weighs in favor of dismissal, since a presumption of injury
arises from unreasonable delay in prosecuting an action.
Anderson v. Air W., 542 F.2d 522, 524 (9th Cir.
1976). The delay here has been unreasonable. There is no
basis for Petitioner to delay making the only choice he has,
and he claims no reason for the delay. The delay has been the
result of Petitioner's flagrant disobedience of the
Court's orders. And he further delayed the proceedings
unreasonably by filing a frivolous interlocutory appeal. The
fourth factor-the public policy favoring disposition of cases
on their merits-is greatly outweighed by the factors favoring
dismissal. Finally, a court's warning to a party that
failure to obey the court's order will result in
dismissal satisfies the “consideration of
alternatives” requirement. Ferdik, 963 F.2d at
1262; Malone, 833 F.2d at 132-33;
Henderson, 779 F.2d at 1424. Although the Court
could have dismissed after Petitioner's first failure to
comply, the Court gave him a second chance, along with a
second warning, and he ignored the Court's order again.
HEREBY ORDERED that the Motion for Judicial Action on
Petition (ECF No. 93) and the Motion to Strike (ECF No. 97)
FURTHER ORDERED that the action is DISMISSED for failure to
obey the ...