Kaddoura v. Cate et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Dismissal of 38 Action, without Prejudice, for Failure to Prosecute; Fourteen-Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 1/22/2015. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 2/9/2015. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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HOSAM KADDOURA,
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Plaintiff,
v.
MATTHEW CATE, et al.,
Defendants.
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Case No.: 1:11-cv-01422-LJO-BAM PC
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION,
WITHOUT PREJUDICE, FOR FAILURE TO
PROSECUTE
FOURTEEN-DAY DEADLINE
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Plaintiff Hosam Kaddoura (“Plaintiff”) is a former state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 29, 2014, the
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Court issued an order authorizing service of Plaintiff’s second amended complaint, and requiring
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Plaintiff to fill out and return the USM-285 forms and summonses within thirty days. On July 18,
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2014, after more than thirty days passed and Plaintiff failed to comply with or otherwise respond to the
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order, the Court ordered him to show cause why this action should not be dismissed for failure to
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prosecute, and warned him that the failure to file a response to the order would result in dismissal of
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the action. (ECF No. 43.) Several months have passed and Plaintiff has not responded to the order to
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show cause.
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The Court has the inherent power to control its docket and may, in the exercise of that power,
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impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles
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County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action for failure to
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comply with a pretrial order, the Court must weigh “(1) the public’s interest in expeditious resolution
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of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)
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the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th
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Cir. 2006) (internal quotations and citations omitted). These factors guide a court in deciding what to
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do, and are not conditions that must be met in order for a court to take action. Id. (citation omitted).
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Based on Plaintiff’s failure to comply with or otherwise respond to these particular court
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orders, the Court is left with no alternative but to dismiss the action for failure to prosecute. Id. This
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action, which has been pending since 2011, can proceed no further without Plaintiff’s cooperation and
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compliance with the orders at issue, and the action cannot simply remain idle on the Court’s docket,
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unprosecuted. Id. Accordingly, it is HEREBY RECOMMENDED that this action be dismissed,
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without prejudice, 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 Title 28 U.S.C. § 636(b)(l). Within fourteen (14)
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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 result in the waiver of the “right to challenge the magistrate’s factual findings” on
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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
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1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
January 22, 2015
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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