Tubach v. Brown et al

Filing 11

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED for failure to follow the Court's orders; re 1 Prisoner Civil Rights Complaint filed by Isabel Tubach; referred to Judge Ishii,signed by Magistrate Judge Sandra M. Snyder on 03/26/2014. Objections to F&R due by 5/1/2014 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:13-cv-00089-AWI-SMS (PC)
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ISABEL TUBACH,

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Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT THE COURT
DISMISS THIS ACTION, WITHOUT
PREJUDICE, FOR
FAILURE TO PROSECUTE

JERRY BROWN, et al.,
Defendants.

Doc. 10

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Plaintiff Isabel Tubach (“Plaintiff”), a prisoner in the custody of the California
Department of Corrections and Rehabilitation (“CDCR”) proceeds pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint in this action
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on January 18, 2013. Doc. 1.
In the complaint, Plaintiff alleged that she was being physically and sexually abused and

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harassed in violation of the Eighth Amendment, but she did not identify any specific

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constitutional right that she believed was violated. The complaint failed to allege specific factual

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details, including the dates on which the abuse and harassment occurred.

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On January 6, 2014, to enable the Court to screen the complaint in compliance with 28
U.S.C. § 1915A, this Court issued an order requiring Plaintiff to submit within thirty (30) days a

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more definite statement of facts. Doc. 9. The order warned Plaintiff that failure to comply might
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result in the action's being dismissed without further notice pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure.

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On February 19, 2014, after more than thirty days passed without any action by Plaintiff,

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the Court ordered her to show cause within fifteen days why this action should not be dismissed,

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warning her that this action would be dismissed if she failed to respond. Doc. 10. Although the

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fifteen-day deadline has expired, Plaintiff has not complied with or otherwise responded to either

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

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

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

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the Court must weigh A(1) the public=s interest in expeditious resolution of litigation; (2) the

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court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.@ In
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re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir.

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2006), quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987). These factors

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guide a court in deciding how to proceed when a plaintiff fails to actively prosecute his or her

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case.

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Based on Plaintiff=s failure to comply with or otherwise respond to the above orders, the
Court is left with no alternative but to dismiss the action for failure to prosecute. Id. This action

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cannot proceed without Plaintiff=s cooperation and compliance with the orders at issue.
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Accordingly, the undersigned recommends that this action be DISMISSED for failure to
follow the Court's orders.
These findings and recommendations are submitted to the Honorable Anthony W. Ishii,

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United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and
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Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of

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California. Within thirty (30) days after being served with a copy, Plaintiff may file written

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objections with the court, serving a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” The Court will then review

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the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff advised that failure

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to file objections within the specified time may 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:

March 26, 2014

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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