(HC) Overton v. Unknown ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. OVERTON, No. 2:19-CV-1764-JAM-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 UNKNOWN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. On September 23, 2019, the court directed 19 petitioner to submit either a completed application for leave to proceed in forma pauperis or the 20 full filing fee for this action within 30 days. Petitioner was warned that failure to comply may 21 result in dismissal of this action for lack of prosecution and failure to comply with court rules and 22 orders. See Local Rule 110. To date, petitioner has failed to comply. 23 The court must weigh five factors before imposing the harsh sanction of dismissal. 24 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 25 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 26 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 27 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 28 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 1 | 53 (th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 2 | sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 3 | 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 4 | there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 5 | 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 6 | order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 7 | 1992). 8 Having considered these factors, and in light of petitioner’s failure to resolve the 9 | fee status for this case as directed, the court finds that dismissal of this action is appropriate. 10 Based on the foregoing, the undersigned recommends that this action be 11 | dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 12 | orders and that petitioner’s motion (ECF No. 5) be denied as moot. 13 These findings and recommendations are submitted to the United States District 14 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 15 | after being served with these findings and recommendations, any party may file written 16 | objections with the court. Responses to objections shall be filed within 14 days after service of 17 | objections. Failure to file objections within the specified time may waive the right to appeal. See 18 | Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 |) Dated: October 29, 2019 Sx