Barger v. Hursch et al

Filing 14

ORDER signed by Magistrate Judge Craig M. Kellison on 9/2/2015 DISMISSING this action, without prejudice, for lack of prosecution and failure to comply with court rules and orders. All pending motions (Docs. 7 , 8 , 11 ) are DENIED as moot. The Clerk shall enter judgment and close this file. CASE CLOSED.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY DALE BARGER,

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Petitioner,

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No. 2:15-CV-0223-CMK-P

vs.

ORDER

DAVID HURSCH, et al.,

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Respondents.

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/

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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. Petitioner has consented to Magistrate Judge

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jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the

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action.

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On February 6, 2015, and again on May 21, 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. Petitioner was warned that failure to comply may result in

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dismissal of this action for lack of prosecution and failure to comply with court rules and orders.

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See Local Rule 110. As of July 17, 2015, petitioner had not complied and the court directed

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petitioner to show cause in writing within 30 days why this action should not be dismissed for
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failure to prosecute and comply with court orders. To date, petitioner has failed to comply with

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the February 6, 2015, or May 21, 2015, orders, and petitioner has failed to respond to the July 17,

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2015, order to show cause.

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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).

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In this case, the court finds that these factors weight in favor of dismissal as an

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appropriate sanction. Specifically, given petitioner’s failure to resolve fees, he has failed to

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prosecute this action to a point where it can proceed, thus defeating the public’s interest in

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expeditious resolution of the action, the public’s interest in a resolution on the merits, as well as

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the court’s need to manage its docket. A less drastic sanction does not appear to be a viable

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alternative given petitioner’s complete failure to resolve the fees status for this case or respond to

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the court’s prior orders.

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Accordingly, IT IS HEREBY ORDERED that:

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This action is dismissed, without prejudice, for lack of prosecution and

failure to comply with court rules and orders;

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All pending motions (Docs. 7, 8, and 11) are denied as moot; and

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The Clerk of the Court is directed to enter judgment and close this file.

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DATED: September 2, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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