Michel v. Floyd et al

Filing 12

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, for Failure to Obey the Court's Order and Failure to Prosecute re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Dennis L. Beck on 4/20/2015. Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCELINO MOISES MICHEL,

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Plaintiff,
v.

Case No. 1:14-cv-01031 AWI DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO COMPLY WITH COURT
ORDER AND FAILURE TO PROSECUTE

G. FLOYD, et al.,
TWENTY-ONE DAY DEADLINE

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Defendants.

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Plaintiff Marcelino Moises Michel (“Plaintiff”) is a California state prisoner proceeding pro

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se and in forma pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on

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July 2, 2014.

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On January 22, 2015, the Court screened the complaint and dismissed it with leave to amend.

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Plaintiff was ordered to file an amended complaint within thirty (30) days of the date of service of

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the order.

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On March 16, 2015, after the time for filing his amended complaint had passed, the Court

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issued an order to show cause why this action should not be dismissed. Plaintiff was ordered to file

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a response, or submit his amended complaint, within twenty-one (21) days.

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Over twenty-one (21) days have passed and Plaintiff has not responded to the order to show
cause, or otherwise communicated with the Court.

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DISCUSSION

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

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must weigh “(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

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re

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Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal

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quotations and citations omitted). These factors guide a court in deciding what to do, and are not

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conditions that must be met in order for a court to take action. Id. (citation omitted).
Based on Plaintiff’s failure to comply with or otherwise respond to the Court’s order, the

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

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proceed no further without Plaintiff’s cooperation and compliance with the order at issue, and the

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action cannot simply remain idle on the Court’s docket, unprosecuted. Id. This action has been

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pending since July 2, 2014, and there is no operative complaint on file. Finally, the Court’s order to

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show cause was clear that dismissal would result from Plaintiff’s failure to respond.

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FINDINGS AND RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS this action be dismissed, without
prejudice, for failure to obey the Court’s order and 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 twenty-one

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(21) 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 he

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

April 20, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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