Luis Mendoza v. Jeffrey Beard , 671 F. App'x 559 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LUIS MENDOZA, No. 15-16194
Petitioner-Appellant, D.C. No.
2:98-cv-02150-MCE-GGH
v.
JEFFREY A. BEARD, Secretary of MEMORANDUM*
CDCR,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted December 12, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Luis Mendoza appeals the dismissal of his federal habeas petition for failure
to prosecute. Because the facts are known to the parties, we repeat them only as
necessary to explain our decision.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
I
Dismissal for failure to prosecute is a “harsh penalty” that is “appropriate
only in extreme circumstances of unreasonable delay.” Hernandez v. City of El
Monte, 138 F.3d 393, 400 (9th Cir. 1998) (internal quotation marks omitted). The
court must weigh five factors when considering whether such dismissal is
warranted: (1) the public’s interest in expeditious resolution to litigation; (2) the
court’s need to manage its docket; (3) the public policy favoring disposition of
cases on their merits; (4) the availability of less drastic sanctions; and (5) the risk
of prejudice to the defendants. See id. at 399. We “may affirm a dismissal where
at least four factors support dismissal, or where at least three factors strongly
support dismissal.” Id. (internal quotation marks and citations omitted).
Although the district court consulted the proper factors, it erred in its
calculation of the factors for and against dismissal. Based on the district court’s
own findings, only one of the five factors supports dismissal.
A
First, the district court did not err in concluding that Mendoza unreasonably
delayed by failing to take any action in this case—including communicating with
his attorney—for more than fourteen years. Despite being abandoned by his
attorney, Mendoza has not shown that he pursued his case with reasonable
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diligence. Cf. Luna v. Kernan, 784 F.3d 640, 650 (9th Cir. 2015) (claim of
reasonable diligence despite attorney misconduct considers whether petitioner kept
in reasonable contact with his attorney); Doe v. Busby, 661 F.3d 1001, 1013 (9th
Cir. 2011) (same). The public’s interest in expeditious resolution to litigation
favors dismissal.
B
Second, we defer to the district court’s determination that its docket-
management needs do not support dismissal. See Pagtalunan v. Galaza, 291 F.3d
639, 642 (9th Cir. 2002).
C
Third, the public policy favoring disposition of cases on their merits weighs
against dismissal. See id. at 643.
D
Fourth, the district court determined that there is a less drastic alternative to
dismissal available: the court could lift the stay and allow Mendoza to proceed on
his pending amended petition, which includes only already-exhausted claims. The
availability of this lesser sanction weighs against dismissal.
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E
Finally, the district court determined that the State would not suffer actual
prejudice if Mendoza were permitted only to proceed with his already-exhausted
claims. The State does not challenge that factual determination on appeal, and we
see no reason to conclude that it was made in error. This lack of prejudice should
have weighed against dismissal. See Anderson v. Air West, Inc., 542 F.2d 522, 524
(9th Cir. 1976) (“[I]f there is a showing that no actual prejudice occurred, that
factor should be considered when determining whether the trial court exercised
sound discretion.”). The district court erred in counting this factor in favor of
dismissal.
II
In sum, four of the five relevant factors weigh against dismissal; it was an
abuse of discretion to dismiss Mendoza’s petition in these circumstances. See, e.g.,
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (three or four factors
required to support dismissal); Hernandez, 138 F.3d at 399 (same). Instead, the
district court should have imposed the less drastic sanction it identified. On
remand, the court shall impose such sanction, allowing Mendoza to proceed with
the amended petition he filed with the court in January 2000.
REVERSED and REMANDED.
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