Jacob Smith v. Jim Salmonsen ( 2023 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        FEB 14 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JACOB SMITH,                                    No.    21-35942
    Petitioner-Appellant,           D.C. No. 6:21-cv-00070-SEH
    v.
    MEMORANDUM*
    JIM SALMONSEN; ATTORNEY
    GENERAL FOR THE STATE OF
    MONTANA,
    Respondents-Appellees.
    JACOB SMITH,                                    No.    21-35944
    Petitioner-Appellant,           D.C. No. 6:21-cv-00040-SEH
    v.
    JIM SALMONSEN; ATTORNEY
    GENERAL FOR THE STATE OF
    MONTANA,
    Respondents-Appellees.
    JACOB SMITH,                                    No.    21-35945
    Petitioner-Appellant,           D.C. No. 6:21-cv-00014-SEH
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    v.
    LYNN GUYER; ATTORNEY GENERAL
    FOR THE STATE OF MONTANA,
    Respondents-Appellees.
    Appeal from the United States District Court
    for the District of Montana
    Sam E. Haddon, District Judge, Presiding
    Submitted February 6, 2023**
    Portland, Oregon
    Before: M. SMITH, FORREST, and SUNG, Circuit Judges.
    Petitioner Jacob Smith appeals from the district court’s dismissal of his three
    
    28 U.S.C. § 2254
     petitions for failure to prosecute under Federal Rule of Civil
    Procedure 41(b). We review a district court’s dismissal for failure to prosecute for
    abuse of discretion. Omstead v. Dell, Inc., 
    594 F.3d 1081
    , 1084 (9th Cir. 2010). We
    have jurisdiction pursuant to 
    28 U.S.C. § 1291
    , and we affirm.
    Because the parties are familiar with the facts, we do not recount them here,
    except as necessary to provide context to our ruling.
    1.     The district court did not err by failing to assess Smith’s competence
    before dismissing his petitions. Pursuant to Allen v. Calderon, a pro se litigant “is
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
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    entitled to a competency determination when substantial evidence of incompetence
    is presented” to the district court. 
    408 F.3d 1150
    , 1153 (9th Cir. 2005). “Where a
    party’s incompetence in fact caused him to fail to prosecute or meet a filing deadline,
    the action should not be dismissed on such grounds.” 
    Id.
    In this case, Smith did not raise the issue of his current competency to the
    district court, nor was there any evidence that he was incompetent during the
    pendency of his habeas actions. Rather, he argued he was incompetent during the
    state proceedings that underlie his petitions. The district court was not required to
    assess Smith’s current competency to proceed in his habeas actions based on Smith’s
    assertion that he was previously unfit to plea in state criminal proceedings several
    years before, given the absence of any indication of current incompetence. Allen is,
    therefore, inapposite.
    2.     The district court otherwise did not abuse its discretion by dismissing
    Smith’s petitions. A court must consider five factors before dismissing pursuant to
    Rule 41(b): “(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
    defendants/respondents; (4) the availability of less drastic alternatives; and (5) the
    public policy favoring disposition of cases on their merits.” Pagtalunan, 
    291 F.3d 639
    , 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 
    963 F.2d 1258
    , 1260–61 (9th
    Cir. 1992)). “We may affirm a dismissal where at least four factors support
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    dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu
    Image, Inc., 
    648 F.3d 779
    , 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier,
    
    191 F.3d 983
    , 990 (9th Cir. 1999)).
    Turning to this case, the first factor—as it always does—favors dismissal.
    Pagtalunan, 
    291 F.3d at 642
    . Given Smith’s noncompliance with the district court’s
    multiple extended deadlines, the second factor strongly favors dismissal. See 
    id.
     (“It
    is incumbent upon the Court to manage its docket without being subject to routine
    noncompliance of litigants . . . .”).
    When evaluating the third factor, courts “consider prejudice and delay
    together to determine whether there has been sufficient delay or prejudice to justify
    a dismissal.” In re Eisen, 
    31 F.3d 1447
    , 1453 (9th Cir. 1994) (cleaned up) (emphasis
    in original). “The law presumes injury from unreasonable delay,” and “the failure
    to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence
    of a showing of actual prejudice.” 
    Id. at 1452
     (citation omitted). However, “if there
    is a showing that no actual prejudice occurred, that fact[] should be considered.” 
    Id. at 1453
    . Courts also “relate[] the risk of prejudice to the plaintiff’s reason for
    defaulting.” Pagtalunan, 
    291 F.3d at 642
    .
    In this case, there is little if any actual prejudice to Respondents, as the State
    of Montana never responded to Smith’s petitions. Balanced against this lack of
    actual prejudice are Smith’s reasons for delay. See 
    id.
     at 642–43. Smith asserts that
    4
    he missed deadlines because COVID interfered with his ability to use the prison law
    library and, after he missed his first extended deadline, prison officials stole his legal
    research. While Smith may have had good cause to ask for some additional time,
    Smith blew past three extended deadlines despite the court’s warnings that failure to
    respond timely would result in dismissal. Given the extent of Smith’s delays and his
    relatively weak justification for the untimeliness, this factor favors dismissal, though
    not heavily. See 
    id. at 643
     (finding third factor satisfied due to unreasonable delays
    even absent actual prejudice to the government, which had not responded to
    petitioner’s habeas petition).
    Factor four strongly favors dismissal. The district court tried less drastic
    alternatives by extending Smith’s deadline three times and warning each time that
    failure to comply may result in dismissal. See Malone v. USPS, 
    833 F.2d 128
    , 132–
    33 (9th Cir. 1987) (warning of potential for dismissal and use of alternative methods
    prior to dismissal suffice to meet fourth factor). Finally, the fifth factor inherently
    counsels against dismissal because “[p]ublic policy favors disposition of cases on
    the merits.” Pagtalunan, 
    291 F.3d at 643
    . On balance, the district court did not
    abuse its discretion because four factors support dismissal.
    3.     The district court did not abuse its discretion by failing to explain its
    reasoning for dismissing the petitions. See In re Phenylpropanolamine (PPA) Prod.
    Liab. Litig., 
    460 F.3d 1217
    , 1226 (9th Cir. 2006) (“Although it is preferred, it is not
    5
    required that the district court make explicit findings in order to show that it has
    considered the [dismissal] factors . . . .” (citations omitted)).
    AFFIRMED.
    6