(HC) Barrera v. CDCR Board of Prison Hearings et al, No. 2:2021cv01648 - Document 6 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/16/2021 RECOMMENDING this action be dismissed without prejudice. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX BERRERA, 12 13 14 15 16 No. 2:21-CV-1648-JAM-DMC-P Petitioner, FINDINGS AND RECOMMENDATIONS v. CDCR BOARD OF PRISON HEARINGS, et al., Respondents. 17 18 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 19 habeas corpus under 28 U.S.C. § 2254. On September 22, 2021, the Court directed Petitioner to 20 submit either a completed application for leave to proceed in forma pauperis or the full filing fee 21 for this action within 30 days. Petitioner was warned that failure to comply may result in 22 dismissal of this action for lack of prosecution and failure to comply with court rules and orders. 23 See Local Rule 110. To date, Petitioner has failed to comply. 24 The Court must weigh five factors before imposing the harsh sanction of 25 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 26 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 27 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 28 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 1 1 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 2 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 3 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. See 4 Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 5 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 6 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 7 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 8 1260-61 (9th Cir. 1992). Having considered these factors, and in light of Petitioner’s failure to resolve the 9 10 fee status for this case as directed, the Court finds that dismissal of this action is appropriate. 11 Based on the foregoing, the undersigned recommends that this action be 12 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 13 orders. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. Responses to objections shall be filed within 14 days after service of 18 objections. Failure to file objections within the specified time may waive the right to appeal. See 19 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 Dated: November 16, 2021 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2