McCoy v. Kelso, et al.

Filing 7

FINDINGS and RECOMMENDATIONS to Dismiss Action, without Prejudice, for Failure to Prosecute, signed by Magistrate Judge Gerald B. Cohn on 9/18/12. Referred to Judge Ishii; 15-Day Deadline. (Verduzco, M)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
JOSEPH RAYMOND McCOY,

CASE NO. 1:12-cv-00983-AWI-GBC (PC)

8
Plaintiff,
9
v.

FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION, WITHOUT PREJUDICE,
FOR FAILURE TO PROSECUTE

10
J. CLARK KELSO, et al.,
11
Defendants.
12

/ OBJECTIONS DUE WITHIN 15 DAYS

13
14

Findings and Recommendations

15

On June 19, 2012, Plaintiff Joseph Raymond McCoy (“Plaintiff”), a state prisoner proceeding

16

pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On June 19, 2012, the

17

Court ordered Plaintiff to either consent to or decline Magistrate Judge jurisdiction within thirty

18

days. Doc. 2. Plaintiff failed to comply, and on August 6, 2012, the Court issued a second order

19

requiring Plaintiff to file a response within thirty days. Doc. 4. More than thirty days have passed,

20

and Plaintiff has not complied with or otherwise responded to the Court’s orders.

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

(quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court
Page 1 of 2

1

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

2

In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006)

3

(citation omitted).

4

Based on Plaintiff’s failure to comply with or otherwise respond to these particular court

5

orders, the Court is left with no alternative but to dismiss the action for failure to prosecute. This

6

action can proceed no further without Plaintiff’s cooperation and compliance with the orders at issue

7

and cannot simply remain idle on the Court’s docket.

8
9

Accordingly, it is hereby RECOMMENDED that this action be dismissed, without prejudice,
based on Plaintiff’s failure to prosecute.

10

These Findings and Recommendations will be submitted to the United States District Judge

11

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen (15) days

12

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

13

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

14

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

15

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

16

Cir. 1991).

17

IT IS SO ORDERED.

18
19

Dated:
7j8cce

September 18, 2012
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
Page 2 of 2