Oliver v. DoCanto, et al.

Filing 27

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Failure to State a Cognizable Claim for Relief and Failure to Prosecute re 21 Second Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 1/4/2017. Referred to Judge Drozd. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENNETH OLIVER,

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Plaintiff,
v.
M. DOCANTO, et al.,
Defendants.

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Case No. 1:15-cv-01173-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE COMPLY WITH COURT ORDER
AND FILE AN AMENDED COMPLAINT
[ECF Nos. 22, 26]

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

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1983. Plaintiff declined United States Magistrate Judge jurisdiction; therefore, this action was referred

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to the undersigned pursuant to 28 U.S.C. § 636(c)

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I.

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DISCUSSION

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On August 18, 2016, the Court dismissed Plaintiff’s second amended complaint for failure to

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state a cognizable claim for relief and granted Plaintiff one additional opportunity to amend the

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complaint. (ECF No. 22.) After receiving two extensions of time to file a third amended complaint,

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Plaintiff has failed to file an amended complaint or otherwise responded to the Court’s order despite

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the thirty day deadline. As a result, there is no pleading on file which sets forth any claims upon

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which relief may be granted.

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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).
Based on Plaintiff’s failure to comply with or otherwise respond to the Court’s order, there is

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no pleading on file which sets forth any claims upon which relief may be granted, and the Court is left

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with no alternative but to dismiss the action for failure to state a cognizable claim for relief. Id.

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II.

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RECOMMENDATION
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to

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state a cognizable claim for relief and failure to prosecute.
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)(1). Within thirty (30)

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days after being served with these findings and recommendations, 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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Recommendations.” 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.

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2014)(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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January 4, 2017
UNITED STATES MAGISTRATE JUDGE

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