(PC) Johnson v. Covello ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SEDRIC EUGENE JOHNSON, No. 2:21-CV-1605-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 P. COVELLO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. On January 11, 2022, the District Judge issued an order denying Plaintiff’s 19 motion for leave to proceed in forma pauperis and directing Plaintiff to pay the filing fees within 20 30 days. See ECF No. 17. On February 15, 2022, the Court granted Plaintiff a 30-day extension 21 of time. See ECF No. 20. To date, despite warnings throughout the case regarding the 22 consequences of the failure to comply with the Court’s orders, Plaintiff has not paid the filing fees 23 for this action as directed. 24 The Court must weigh five factors before imposing the harsh sanction of dismissal. 25 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 26 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 27 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 28 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 1 | and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 2 | 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 3 || sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 4 | 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 5 | there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 6 | 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 7 | order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 8 | 1992). 9 Having considered these factors, and in light of Plaintiffs failure to pay the filing 10 | fees for this case as directed by the District Judge, the Court finds that dismissal of this action is 11 | appropriate. 12 Based on the foregoing, the undersigned recommends that: 13 1. This action be dismissed, without prejudice, for lack of prosecution and 14 | failure to comply with court rules and orders; and 15 2. Plaintiff's motion to cure discrepancies in his complaint, ECF No. 14, be 16 || denied as moot. 17 These findings and recommendations are submitted to the United States District 18 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 19 | after being served with these findings and recommendations, any party may file written 20 | objections with the court. Responses to objections shall be filed within 14 days after service of 21 | objections. Failure to file objections within the specified time may waive the right to appeal. See 22 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991), 23 24 | Dated: March 21, 2022 Sx