Lomako v. Pleasant Valley State Prison et al

Filing 29

ORDER DISMISSING 22 Action, without Prejudice, for Failure to Prosecute signed by Judge Oliver W. Wanger on 11/9/2010. CASE CLOSED. (Sant Agata, S)

(PC) Lomako v. Pleasant Valley State Prison et al

Doc. 29

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 Defendants. 14 15 Plaintiff Justin Lomako, a former state prisoner proceeding pro se, filed this civil rights 16 action pursuant to 42 U.S.C. § 1983 on February 7, 2007. On August 11, 2010, the Magistrate Judge 17 issued an order finding service of the fourth amended complaint appropriate and forwarding service 18 documents to Plaintiff for completion and return within thirty days. Plaintiff was warned that 19 dismissal would result if he failed to comply with the order. More than thirty days have passed and 20 Plaintiff has not complied with or otherwise responded to the order. 21 The Court has the inherent power to control its docket and may, in the exercise of that power, 22 impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles 23 County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action for failure 24 to comply with a pretrial order, the Court must weigh "(1) the public's interest in expeditious 25 resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the 26 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 27 of less drastic sanctions." In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT

JUSTIN LOMAKO, Plaintiff, v.

CASE NO. 1:07-cv-00205-OWW-SMS PC ORDER DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE (Doc. 28)

PLEASANT VALLEY STATE PRISON, et al., /

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted). These factors guide a court in deciding what to do, and are not conditions that must be met in order for a court to take action. Id. (citation omitted). Based on Plaintiff's failure to comply with or otherwise respond to the Court's order, the Court is left with no alternative but to dismiss the action for failure to prosecute. Id. This action, which has been pending since 2007, can proceed no further without Plaintiff's cooperation and compliance with the order at issue, and the action cannot simply remain idle on the Court's docket, unprosecuted. Id. Accordingly, this action is HEREBY DISMISSED for failure to prosecute, without prejudice. In re PPA, 460 F.3d at 1226; Local Rule 110.

IT IS SO ORDERED. Dated: November 9, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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