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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUMALDO BARBOZA,

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Plaintiff,
v.
BARRY J. GREEN,
Defendants.

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Case No.: 1:12-cv-01914 – AWI – JLT (PC)
FINDINGS AND RECOMMENDATIONS OF
DISMISSAL FOR FAILURE TO PROSECUTE
(Doc. 16).

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Plaintiff Rumaldo Barboza (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On July 30, 2013, the Court dismissed

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the complaint in this matter. (Doc. 15). The Court granted Plaintiff 21 days from the date of service of

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the order to comply with the July 30, 2013 order. Id. On August 28, 2013, the Court ordered Plaintiff

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to show cause as to why the matter should not be dismissed for his failure to file a first amended

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complaint and granted him 14 days to respond to the order to show cause. (Doc. 16). More than 14

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days have passed, and Plaintiff has again failed to comply with the Court’s order.

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In determining whether to dismiss an action for lack of prosecution, the court must consider

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several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition

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of cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988).
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The public’s interest in expeditiously resolving this litigation and the Court’s interest in

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managing its docket weigh in favor of dismissal, as this case has been pending since November 26,

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2012. (Doc. 1). This case cannot be held abeyance indefinitely based on Plaintiff’s failure to file his

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first amended complaint. Moreover, the Court explicitly advised Plaintiff that “[s]hould Plaintiff fail to

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file his first amended complaint, the Court will issue findings and recommendations that this matter be

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dismissed.” (Doc. 16 at 2).

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The risk of prejudice to Defendants also weighs in favor of dismissal, since a presumption of

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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air

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West, 542 F.2d 522, 524 (9th Cir. 1976). Similarly, the factors in favor of dismissal discussed above

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greatly outweigh the public policy favoring disposition of cases on their merits. Finally, no lesser

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sanction is feasible given the Court’s inability to communicate with Plaintiff based on Plaintiff’s

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continuous disregard for the Court’s mandates.
FINDINGS AND RECOMMENDATIONS

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Accordingly, and for the aforementioned reasons, the Court RECOMMENDS DISMISSAL of
the matter for failure to prosecute.

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These findings and recommendations are submitted to the United States District Judge assigned

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to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of

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Practice for the United States District Court, Eastern District of California. Within 14 days after

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being served with these findings and recommendations, Plaintiff may file written objections with

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

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Recommendations.” Plaintiff is advised 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 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

September 19, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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