Gomez v. Gipson et al

Filing 13

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to Comply with a Court Order and Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 03/11/2016. Referred to Judge O'Neill; Objections to F&R due by 4/14/2016.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GABRIEL GOMEZ,

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Plaintiff,

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v.
C. GIPSON, et al.,

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Defendants.

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Case No.: 1:15-cv-00726-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO COMPLY WITH A COURT
ORDER AND FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF
[ECF No. 12]

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Plaintiff Gabriel Gomez is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant

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to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 1, 2016, the Court dismissed Plaintiff’s complaint for failure to state a cognizable

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claim for relief and Plaintiff was granted thirty days to file an amended complaint. 28 U.S.C. §

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

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dismissed, with prejudice, for failure to state a claim and failure to prosecute. (ECF No. 12, at 9:4-5.)

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More than thirty days have passed, and Plaintiff has not complied with or otherwise responded to the

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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 this 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 own

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docket; (3) the risk of prejudice to the defendants; (4) the public policy of 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, and failure to prosecute.

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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)(1). Within thirty (30)

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

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

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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.2d 834, 838-39 (9th Cir. 2014)

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

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IT IS SO ORDERED.

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Dated:

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March 11, 2016
UNITED STATES MAGISTRATE JUDGE

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