Lopez v. Yates, et al.

Filing 26

FINDINGS and RECOMMENDATIONS Recommending Dismissal of 10 Action, with Prejudice, for Failure to State a Claim Upon which Relief may be Granted and for Failure to Prosecute; Objections Due within 14 Days signed by Magistrate Judge Gerald B. Cohn on 12/17/2012. Referred to Judge Lawrence J. O' Neill. Objections to F&R due by 1/3/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EMILIANO LOPEZ,

CASE NO. 1:11-cv-00107-LJO-GBC (PC)

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Plaintiff,
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v.
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JAMES A. YATES, 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 14 DAYS

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On January 21, 2011, Plaintiff Emiliano Lopez (“Plaintiff”), a state prisoner proceeding pro

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se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging denial

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of access to courts regarding child visitation and to challenge the $3,766.28 taken by child support

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from his retirement. Doc. 1.

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On August 25, 2011, Plaintiff filed a first amended complaint. Doc. 10. On September 22,

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2011, the Court dismissed Plaintiff’s case, for failure to state a claim, since Plaintiff did not allege

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a denial of access to courts for a direct criminal appeal, habeas petition, or civil rights action, in

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accordance with Lewis v. Casey, 518 U.S. 343, 354 (1996). Doc. 14. On September 26, 2011, the

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Ninth Circuit found that a prisoner could pursue a § 1983 access to courts claim for any case that has

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a reasonable basis in law or fact. Silva v. Di Vittorio, 658 F.3d 1090, 1102-03 (9th Cir. 2011). On

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September 25, 2012, the Ninth Circuit reversed this Court’s decision, noting that Plaintiff could

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bring a claim alleging denial of access to courts for a child custody and child support case, in

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accordance with Silva. Doc. 23. The Ninth Circuit vacated and remanded for further proceedings.

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Id. On October 18, 2012, the Ninth Circuit issued the formal mandate to this Court. Doc. 24.

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On November 6, 2012, the undersigned found that Plaintiff had not alleged sufficient facts

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which indicate that Plaintiff suffered active interference by defendants. Silva, 658 F.3d at 1103-04.

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Moreover, Plaintiff had not established that defendants’ actions were the proximate cause of actual

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prejudice to Plaintiff. Id. The undersigned dismissed Plaintiff’s first amended complaint for failure
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to state a claim upon which relief may be granted and ordered Plaintiff to file a second amended

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complaint within thirty days. 28 U.S.C. §§ 1915A and 1915(e). Doc. 25. To date, Plaintiff has not

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complied with the Court’s order or requested an 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 fourteen (14) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:
7j8cce

December 17, 2012
UNITED STATES MAGISTRATE JUDGE

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