Case No. CV 17-818-ODW (SP)
MEMORANDUM AND ORDER DISMISSING PETITION FOR FAILURE TO STATE COGNIZABLE CLAIM AND FAILURE TO PROSECUTE
On February 1, 2017, petitioner William Hatley, a federal prisoner currently housed at the Metropolitan Detention Center in Los Angeles, filed a Petition for Writ of Habeas Corpus ("Petition"), apparently under 28 U.S.C. § 2241. Petitioner contends his due process rights have been violated because the United States Passport Office has not delivered his renewed passport to him.
After initially reviewing the Petition, the Court concluded it did not state a cognizable ground for habeas corpus relief. Accordingly, on February 7, 2017, the Court issued an Order to Show Cause ("OSC") for petitioner to show cause in writing by March 7, 2017 why the Petition should not be dismissed for failure to state a cognizable habeas claim. The Court explained to petitioner why his Petition does not appear to state a cognizable ground for habeas corpus relief, and gave petitioner three options: (1) he could file a response stating why he contends his Petition does state a cognizable habeas claim; (2) he could voluntarily dismiss the Petition and, if he wished, thereafter file a civil complaint; or (3) he could ask the Court to construe the Petition as a civil rights complaint.
Petitioner has not filed a timely response to the Order to Show Cause.
For the reasons discussed below, the Petition does not state a cognizable ground for habeas corpus relief. Moreover, by failing to respond to the OSC, petitioner has failed to prosecute this action. Accordingly, the Petition must be dismissed.
A. Failure to State a Cognizable Claim
"[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). With the instant § 2241 Petition, petitioner argues his rights have been violated by the delay in delivery of his passport to him, but he does not appear to be seeking release from custody, nor is he challenging the legality of his current custody. Instead, petitioner is contending that his right to travel will be hindered upon his release from custody if he does not then have his passport.
Because the fundamental nature of petitioner's § 2241 Petition in no way is a challenge to the legality of his confinement, it is not cognizable on habeas corpus review. See Muhammad v. Close, 540 U.S. 749, 750, 124 S. Ct. 1303, 158 L. Ed. 2d 32 (2004) ("Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus [citation]; requests for relief turning on circumstances of confinement may be presented in a § 1983 [civil rights] action."); Crawford v. Bell, 599 F.2d 890, 891-92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges to terms and conditions of confinement must be brought in civil rights complaint); see also Wilkinson v. Dotson, 544 U.S. 74, 78-82, 125 S. Ct. 1242, 161 L. Ed. 2d 253 (2005) (discussing the relationship between 42 U.S.C. § 1983 and the federal habeas statutes). Indeed, petitioner's challenge appears to have nothing to do with his confinement, not even the conditions of his confinement. Petitioner does not appear to be contending he should have received his passport while he is in prison, but rather argues it should have been mailed to his probation officer in Las Vegas.
Where a petitioner is challenging his conditions of confinement, the Court in some cases has discretion to construe the Petition as a civil rights complaint. See Willwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971) (holding that district courts have discretion to construe a habeas petition attacking conditions of confinement as a civil rights complaint despite deliberate choice by petitioner to proceed on habeas), superseded by statute on other grounds as recognized in Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). But in light of petitioner's contentions here, the instant § 2241 Petition is not readily amenable to being construed as a civil rights complaint brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), which allows a plaintiff to sue a federal officer for civil rights violations under color of federal law.
First, the Court is unable to treat the Petition as a civil rights complaint at this time, because petitioner has not paid the $350 filing fee required for such a complaint to be filed. Although petitioner may file a request to proceed without prepayment of the $350 filing fee, the request he made with his Petition is inadequate as, inter alia, it is unsupported.
In addition, construing the instant habeas Petition as a civil rights complaint would require the Court to screen the petition/complaint under the Prison Litigation Reform Act, which obligates the Court to review complaints filed by all persons proceeding in forma pauperis, and by prisoners seeking redress from government entities. See 28 U.S.C. §§ 1915(e)(2), 1915A. Under these provisions, the Court may sua sponte dismiss, "at any time," any prisoner civil rights action and all other in forma pauperis complaints which are frivolous or malicious, fail to state a claim, or seek damages from defendants who are immune. Id.; see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
Although the Court has not thoroughly screened the Petition as a civil rights complaint at this time, the Court's cursory review reveals certain fundamental defects. In particular, petitioner has not clearly alleged any Bivens violation, as the Petition does not allege that any federal official acting under authority of law deprived him of a constitutional right. It is not at all clear that delay in mailing a passport could in any case form the basis for a Bivens violation. See Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988) (Supreme Court has "responded cautiously to suggestions that Bivens remedies be extended into new contexts"). But even if it could, the only individual named in the Petition is Wesley Burkhalter, an agent who allegedly told Petitioner in July 2016 that his passport would be sent to his Las Vegas probation officer. An erroneous statement by an agent, without more, does not constitute a due process or other constitutional violation, and there is nothing to indicate Burkhalter took any action to deprive petitioner of his passport. The primary respondent named in the Petition, the State Department Passport Office, is an entity, which cannot be a defendant in a Bivens action. See F.D.I.C. v. Meyer, 510 U.S. 471, 484-86, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994); Consejo de Desarrollo Economica de Mexicali, A.C. v. U.S., 482 F.3d 1157, 1173 (9th Cir. 2007); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996).
For the foregoing reasons, it would be futile for the Court to construe the Petition as a civil rights complaint. Moreover, petitioner has not filed a response to the Court's OSC, which provided him with the option to ask the Court to construe the Petition as a civil rights complaint. Accordingly, the Petition will be dismissed because it fails to state a cognizable habeas claim. B. Failure to Prosecute and Obey Court Order
Petitioner has also failed to diligently prosecute this case. Petitioner's failure to timely respond to the Court's OSC by March 7, 2017, despite being admonished of the consequences, evidences a lack of prosecution on his part.
It is well established that a district court has authority to dismiss a party's action because of his or her failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (a court's authority to dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the district courts); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (weighing factors); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the court).
In Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988), the Ninth Circuit affirmed the district court's dismissal of a case for failure to prosecute. The Ninth Circuit cited the following factors as relevant to the district court's determination of whether dismissal of a pro se party's action for failure to prosecute is warranted: "'(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.'" Id. at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
In this case, petitioner has failed to respond to the Court's February 7, 2017 OSC. Petitioner's failure to follow the Court's orders and to prosecute his case has caused this action to languish, impermissibly allowing petitioner to control the pace of the docket rather than the Court. See Pagtalunan, 291 F.3d at 642 ("It is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants."). Petitioner's conduct indicates that he does not intend to litigate this action diligently, or at all. Thus, the first and second factors weigh in favor of dismissal. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) ("[T]he public's interest in expeditious resolution of litigation always favors dismissal.").
A rebuttable presumption of prejudice to an opposing party arises when a party unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). Although the respondent here has not yet been served and the pendency of a lawsuit is not itself sufficiently prejudicial to warrant dismissal (Pagtalunan, 291 F.3d at 642), nothing suggests that the presumption of prejudice to respondent is unwarranted here. Where a party offers a poor excuse for failing to comply with a court's order, the prejudice to the opposing parties is sufficient to favor dismissal. See Yourish, 191 F.3d at 991-92. Here, petitioner has not offered any excuse for his failure to comply with the Court's orders. Further, "[u]nnecessary delay inherently increases the risk that witnesses' memories will fade and evidence will become stale." Pagtalunan, 291 F.3d at 643 (citing Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968)). Thus, the third factor also weighs in favor of dismissal.
It is a party's responsibility to move a case toward a disposition at a reasonable pace and to avoid dilatory and evasive tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). By failing to respond to the Court's OSC, petitioner has not discharged this responsibility. In these circumstances, the public policy favoring resolution of disputes on the merits does not outweigh petitioner's failure to comply with court orders or move the case forward. Moreover, as discussed above, the Petition does not state a cognizable habeas claim in any event.
The fifth factor, the availability of less drastic sanctions, ordinarily counsels against dismissal. "Alternative sanctions include: a warning, a formal reprimand, placing the case at the bottom of the calendar, a fine, the imposition of costs or attorney fees, the temporary suspension of the culpable counsel from practice before the court, . . . dismissal of the suit unless new counsel is secured [,] . . . preclusion of claims or defenses, or the imposition of fees and costs upon plaintiff's counsel. . . ." Malone v. U.S. Postal Serv., 833 F.2d 128, 132 n.1 (9th Cir. 1987) (citation and internal quotation omitted). In the instant case, however, each of these possibilities is either inappropriate for a pro se litigant proceeding in forma pauperis under the PLRA or has already been employed with no apparent effect.
The Court attempted to avoid dismissal by: (1) issuing an OSC on February 7, 2017, cautioning petitioner that failure to timely respond may result in a recommendation of dismissal for failure to state a cognizable claim and failure to prosecute; and (2) waiting over three weeks beyond the deadline to respond to the OSC before issuing this order. The fifth factor thus also weighs in favor of dismissal.
Based on the foregoing, dismissal of the Petition is also warranted for failure to prosecute and to obey a court order. And because the Petition does not state a cognizable claim, the dismissal will be with prejudice.
IT IS THEREFORE ORDERED that Judgment shall be entered summarily dismissing the Petition and this action with prejudice. DATED: March 31, 2017
HONORABLE OTIS D. WRIGHT, II
UNITED STATES. DISTRICT JUDGE Presented by: /s/_________
UNITED STATES MAGISTRATE JUDGE