Venable v. Biter et al

Filing 11

FINDINGS and RECOMMENDATION Recommending Dismissal of Action for Failure to Comply With a Court Order and Failure to State a Cognizable Claim for Relief 6 , signed by Magistrate Judge Stanley A. Boone on 6/7/16: Thirty-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELVIS VENABLE,

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Plaintiff,
v.
M. D. BITER, et al.,
Defendants.

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Case No.: 1:16-cv-00380-AWI-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. 6]

Plaintiff Elvis Venable 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 on April 1, 2016, and this action

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was referred to the undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.

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On March 30, 2016, the Court screened and dismissed Plaintiff’s complaint, with leave to

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amend, for failure to state a cognizable claim for relief. (ECF NO. 6.) Plaintiff was warned that if he

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failed to comply, this action would be dismissed for failure to state a cognizable claim for relief. (Id.)

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On April 27, 2016, Plaintiff received a thirty day extension of time to submit an amended complaint.

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More than thirty days has expired and Plaintiff has failed to file an amended complaint or otherwise

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respond to the Court’s 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, the Court

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is left with no alternative but to dismiss the action for failure to prosecute. Id. As a result, there is no

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pleading on file which sets forth any claims upon which relief may be granted. 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.
Accordingly, it is HEREBY RECOMMENDED that this action be dismissed for failure to

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comply with a court order and 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, the parties 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.” The parties are 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)).

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IT IS SO ORDERED.

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Dated:

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June 7, 2016
UNITED STATES MAGISTRATE JUDGE

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