Thornton v. Dileo et al

Filing 13

FINDINGS and RECOMMENDATIONS recommending dismissal of action for failure to state a cognizable claim for relief re 10 , 11 , 12 signed by Magistrate Judge Stanley A. Boone on 8/28/2015. Referred to Judge Anthony W. Ishii; Objections to F&R due by 10/1/2015.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SIMON THORNTON,

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Plaintiff,

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v.

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L. DILEO, et al.,

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Defendants.

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Case No.: 1:15-cv-00144-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
[ECF Nos. 10, 11, 12]

Plaintiff Simon Thornton is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983.

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On May 21, 2015, the Court dismissed Plaintiff’s amended complaint for failure to state a

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cognizable claim for relief and Plaintiff was granted thirty days to file a second amended complaint.

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28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). Plaintiff was warned that if he failed to comply, this action

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would be dismissed, with prejudice, for failure to state a claim. (ECF No. 10 at 5:11-12.) On July 1,

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2015, Plaintiff received a thirty day extension of time (ECF No. 12); however, more than thirty days

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have passed, and Plaintiff has not complied with or otherwise responded to the order.

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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 Cnty.,

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

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“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its
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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases

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

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Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted).

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These factors guide a court in deciding what to do, and are not conditions that must be met in order for

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a court to take action. Id. (citation omitted).

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Based on Plaintiff’s failure to comply with or otherwise respond to the Court’s order, as a

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result, there is no pleading on file which sets forth any claims upon which relief may be granted, and

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the Court is left with no alternative but to dismiss the action for failure to state a cognizable claim for

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relief. Id. Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED, with

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prejudice, for failure to state a cognizable claim for relief.

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This Findings and Recommendation 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 thirty (30) days

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after being served with this Findings and Recommendation, Plaintiff may file written objections with

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the Court.

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

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

The document should be captioned “Objections to Magistrate Judge’s Findings and

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IT IS SO ORDERED.

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Dated:

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August 28, 2015
UNITED STATES MAGISTRATE JUDGE

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