Barboza v. Green
Filing
17
FINDINGS and RECOMMENDATIONS of Dismissal for Failure to Prosecute, signed by Magistrate Judge Jennifer L. Thurston on 9/19/2013, referred to Judge Ishii. Objections to F&R Due Within Fourteen Days. (Marrujo, C)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
RUMALDO BARBOZA,
12
13
14
15
16
Plaintiff,
v.
BARRY J. GREEN,
Defendants.
)
)
)
)
)
)
)
)
)
)
Case No.: 1:12-cv-01914 – AWI – JLT (PC)
FINDINGS AND RECOMMENDATIONS OF
DISMISSAL FOR FAILURE TO PROSECUTE
(Doc. 16).
17
Plaintiff Rumaldo Barboza (“Plaintiff”) is a state prisoner proceeding pro se and in forma
18
pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On July 30, 2013, the Court dismissed
19
the complaint in this matter. (Doc. 15). The Court granted Plaintiff 21 days from the date of service of
20
the order to comply with the July 30, 2013 order. Id. On August 28, 2013, the Court ordered Plaintiff
21
to show cause as to why the matter should not be dismissed for his failure to file a first amended
22
complaint and granted him 14 days to respond to the order to show cause. (Doc. 16). More than 14
23
days have passed, and Plaintiff has again failed to comply with the Court’s order.
24
In determining whether to dismiss an action for lack of prosecution, the court must consider
25
several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to
26
manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition
27
of cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779
28
F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988).
1
1
The public’s interest in expeditiously resolving this litigation and the Court’s interest in
2
managing its docket weigh in favor of dismissal, as this case has been pending since November 26,
3
2012. (Doc. 1). This case cannot be held abeyance indefinitely based on Plaintiff’s failure to file his
4
first amended complaint. Moreover, the Court explicitly advised Plaintiff that “[s]hould Plaintiff fail to
5
file his first amended complaint, the Court will issue findings and recommendations that this matter be
6
dismissed.” (Doc. 16 at 2).
7
The risk of prejudice to Defendants also weighs in favor of dismissal, since a presumption of
8
injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air
9
West, 542 F.2d 522, 524 (9th Cir. 1976). Similarly, the factors in favor of dismissal discussed above
10
greatly outweigh the public policy favoring disposition of cases on their merits. Finally, no lesser
11
sanction is feasible given the Court’s inability to communicate with Plaintiff based on Plaintiff’s
12
continuous disregard for the Court’s mandates.
FINDINGS AND RECOMMENDATIONS
13
14
15
Accordingly, and for the aforementioned reasons, the Court RECOMMENDS DISMISSAL of
the matter for failure to prosecute.
16
These findings and recommendations are submitted to the United States District Judge assigned
17
to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of
18
Practice for the United States District Court, Eastern District of California. Within 14 days after
19
being served with these findings and recommendations, Plaintiff may file written objections with
20
the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
21
Recommendations.” Plaintiff is advised failure to file objections within the specified time may
22
waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
23
24
25
26
IT IS SO ORDERED.
Dated:
September 19, 2013
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?