Camarena v. Diep et al

Filing 33

ORDER Granting Defendant's 29 Motion to Dismiss Action, without Prejudice, for Failure to Prosecute signed by Magistrate Judge Gerald B. Cohn on 11/06/2012. CASE CLOSED. (Flores, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
JESSE CAMARENA,

CASE NO. 1:10-cv-00025-GBC (PC)

9
Plaintiff,

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO PROSECUTE

10
v.
11
DR. JOHN DIEP, et al.,

Doc. 29

12
Defendants.
13

/

14
15

On January 6, 2010, Jesee Camarena (“Plaintiff”), a former state prisoner proceeding pro se

16

and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983. Doc. 1. On July 20, 2011, the

17

Court issued an order dismissing certain claims and defendants and finding a cognizable claim

18

against Defendant Diep (“Defendant”) for Eighth Amendment deliberate indifference to serious

19

medical need. Doc. 13.

20

On September 6, 2012, Defendant filed a motion to dismiss for Plaintiff’s failure to prosecute

21

or respond to discovery. Doc. 29. On October 4, 2012, the Court ordered Plaintiff to file an

22

opposition or statement of non-opposition as required by Local Rule 230(l). Doc. 31. More than

23

thirty days have passed, and Plaintiff has not complied with or otherwise responded to the Court’s

24

order.

25

The Court has the inherent power to control its docket and may, in the exercise of that power,

26

impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles

27

County, 216 F.3d 837, 841 (9th Cir. 2000). “In determining whether to dismiss an action for lack of

28

prosecution, the district court is required to consider several factors: ‘(1) the public’s interest in
Page 1 of 2

1

expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

2

prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and

3

(5) the availability of less drastic sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988)

4

(quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court

5

in deciding what to do, and are not conditions that must be met in order for a court to take action.

6

In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir.

7

2006).

8

Accordingly, Defendant’s motion to dismiss for Plaintiff’s failure to prosecute is GRANTED,

9

and this action is hereby DISMISSED, without prejudice, based on Plaintiff’s failure to prosecute.

10
11
12

IT IS SO ORDERED.

13
14

Dated:
7j8cce

November 6, 2012
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 2 of 2