Villatoro v. Brown et al

Filing 19

ORDER DISMISSING Action, with Prejudice, for Failure to State a Claim upon which Relief may be Granted and for Failure to Prosecute signed by Magistrate Judge Gerald B. Cohn on 12/21/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JORGE VILLATORO,

CASE NO. 1:11-cv-00971-GBC (PC)

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Plaintiff,

ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
GRANTED AND FOR FAILURE TO
PROSECUTE

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v.
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JERRY BROWN, et al.,
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Defendants.
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/

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On May 27, 2011, Plaintiff Jorge Villatoro (“Plaintiff”), a state prisoner proceeding pro se
and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1.

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On August 10, 2012, the Court issued a screening order, dismissing Plaintiff’s complaint,

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with leave to amend, for failure to state a claim upon which relief may be granted. Doc. 14. On

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September 12, 2012, Plaintiff filed a motion for extension of time to file an amended complaint,

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stating he needs more time to obtain the status and completion of the medical 602 inmate appeal

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pertaining to the current litigation. See Mot. Ext. File Am. Compl. at 1, Doc. 15.

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On November 16, 2012, the Court granted Plaintiff’s motion for a thirty (30) day extension

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of time to file a first amended complaint. Doc. 18. To date, Plaintiff has not complied with the

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Court’s order or 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), this action be HEREBY

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DISMISSED, with prejudice, based on Plaintiff’s failure to state any claims upon which relief may

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be granted under § 1983 and for failure to prosecute.

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IT IS SO ORDERED.

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Dated:
7j8cce

December 21, 2012
UNITED STATES MAGISTRATE JUDGE

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