(HC) Montoya v. Warden ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER MONTOYA, No. 2:23-CV-2017-DMC-P 12 Petitioner, ORDER 13 v. and 14 WARDEN, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2241. 19 On November 2, 2023, the Court directed Petitioner to submit either a completed 20 application for leave to proceed in forma pauperis or the full filing fee for this action within 30 21 days. Petitioner was warned that failure to comply may result in dismissal of this action for lack 22 of prosecution and failure to comply with court rules and orders. See Local Rule 110. To date, 23 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 interest 27 in expeditious resolution of litigation; (2) the Court's need to manage its own docket; (3) the risk 28 of prejudice to opposing parties; (4) the public policy favoring disposition of cases on their 1 | merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 2 | 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). 9 Having considered these factors, and in light of Petitioner’s failure to resolve the 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 orders and recommends as follows: 12 1. It is hereby ORDERED that the Clerk of the Court is directed to randomly 13 || assign a District Judge. 14 2. It is hereby RECOMMENDED that this action be dismissed, without 15 || prejudice, for lack of prosecution and failure to comply with court rules and orders. 16 These findings and recommendations are submitted to the United States District 17 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 18 | after being served with these findings and recommendations, any party may file written 19 || objections with the court. Responses to objections shall be filed within 14 days after service of 20 || objections. Failure to file objections within the specified time may waive the right to appeal. See 21 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 22 23 | Dated: December 18, 2023 Co 24 DENNIS M. COTA 25 UNITED STATES MAGISTRATE JUDGE 26 27 28