Chanthauong v. People of the State of California
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 6/12/15 RECOMMENDING that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules andorders. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHNNY CHANTHAUONG,
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Petitioner,
vs.
FINDINGS AND RECOMMENDATION
PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.
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No. 2:14-cv-2746-MCE-CMK-P
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. On April 30, 2015, the court directed petitioner to
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submit either a completed application for leave to proceed in forma pauperis or the full filing fee
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for this action within 30 days. The court also dismissed petitioner’s petition and directed
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petitioner to file an amended petition within 30 days. Petitioner was warned that failure to
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resolve his fee status and file an amended petition may result in dismissal of this action for lack
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of prosecution and failure to comply with court rules and orders. See Local Rule 110. To date,
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petitioner has not complied.
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The court must weigh five factors before imposing the harsh sanction of
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dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.
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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's
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interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3)
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the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on
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their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,
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46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an
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appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.
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See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is
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appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,
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1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to
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comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,
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1260-61 (9th Cir. 1992).
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Having considered these factors, and in light of petitioner’s failure to resolve his
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fee status and file an amended petition as directed, the court finds that dismissal of this action is
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appropriate.
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Based on the foregoing, the undersigned recommends that this action be
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dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and
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orders.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 12, 2015
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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