Quezada v. Lindsey et al
Filing
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FINDINGS And RECOMMENDATIONS Recommending Dismissal Of Action, With Prejudice, For Failure To State A Claim Upon Which Relief May Be Granted And For Failure To Prosecute (Doc. 1 ), Objections Due Within 21 Days, signed by Magistrate Judge Gerald B. Cohn on 7/18/2012. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 8/10/2012. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ALVARO QUEZADA,
CASE NO. 1:10-cv-01402-AWI-GBC (PC)
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Plaintiff,
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v.
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R. LINDSEY, et al.,
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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED AND FOR FAILURE TO
PROSECUTE
Defendants.
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/ OBJECTIONS DUE WITHIN 21 DAYS
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On August 5, 2010, Plaintiff Alvaro Quezada (“Plaintiff”), a state prisoner proceeding pro
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se, filed this civil rights action in Santa Clara Superior Court, pursuant to 42 U.S.C. § 1983, alleging
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Defendants conspired, retaliated, and were deliberately indifferent to Plaintiff’s medical needs for
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complaining about the unsafe workplace. Doc. 1. On March 29, 2012, the undersigned dismissed
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Plaintiff’s complaint for failure to state a claim upon which relief may be granted and ordered
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Plaintiff to file an amended complaint within thirty days. 28 U.S.C. §§ 1915A and 1915(e). Doc. 14.
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On April 18, 2012, the Court granted Plaintiff’s motion for a sixty (60) day extension of time to file
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a first amended complaint. Doc. 16. To date, Plaintiff has not complied with the Court’s order or
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requested a further extension of time.
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“In determining whether to dismiss an action for lack of prosecution, the district court is
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required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation;
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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779
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F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not
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conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA)
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Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006).
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In this instance, Plaintiff has not complied with or otherwise responded to the Court’s orders.
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As a result, there is no pleading on file that sets forth any claims upon which relief may be granted
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under § 1983. Accordingly, pursuant to 28 U.S.C. §§ 1915A and 1915(e), the undersigned HEREBY
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RECOMMENDS that this action be DISMISSED, with prejudice, based on Plaintiff’s failure to state
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any claims upon which relief may be granted under § 1983 and for failure to prosecute.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153, 1156-57 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
7j8cce
July 18, 2012
UNITED STATES MAGISTRATE JUDGE
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