(PC) Birrell v. DiTomas ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WESLEY BIRRELL, aka Bella- No. 2:22-CV-1834-KJM-DMC-P Christina Birrell, 12 Plaintiff, 13 FINDINGS AND RECOMMENDATIONS v. 14 MICHELLE DiTOMAS, 15 Defendant. 16 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. On November 15, 2022, the Court directed Plaintiff to resolve the fee status 20 for this case within 30 days. Plaintiff was warned that failure to resolve the fee status may result 21 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, Plaintiff has not complied. 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 (9th 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 Plaintiffs failure to resolve the fee 9 || 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 dismissed, 11 || without prejudice, for lack of prosecution and failure to comply with court rules and orders. 12 These findings and recommendations are submitted to the United States District 13 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I). Within 14 days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court. Responses to objections shall be filed within 14 days after service of 16 || objections. Failure to file objections within the specified time may waive the right to appeal. See 17 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 18 19 | Dated: December 27, 2022 Co 20 DENNIS M. COTA 7] UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28