(HC) Barrera v. CDCR Board of Prison Hearings et al

Filing 6

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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEX BERRERA,

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No. 2:21-CV-1648-JAM-DMC-P

Petitioner,
FINDINGS AND RECOMMENDATIONS
v.
CDCR BOARD OF PRISON HEARINGS,
et al.,
Respondents.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus under 28 U.S.C. § 2254. On September 22, 2021, 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. To date, Petitioner has failed to comply.

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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. See

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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).
Having considered these factors, and in light of Petitioner’s failure to resolve the

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fee status for this case as directed, the Court finds that dismissal of this action is 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. See

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 16, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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