Medina v. Sherman, et al.

Filing 9

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to Respond to a Court Order and Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Stanley A. Boone on 07/07/2016. Referred to Judge Ishii; Objections to F&R due by 8/11/2016.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT MEDINA,

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Plaintiff,
v.
S. SHERMAN, et al.,
Defendants.

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Case No.: 1:16-cv-00475-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO RESPOND TO A COURT
ORDER AND FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF
[ECF Nos. 1 & 8]

Plaintiff Robert Medina 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 May 20, 2016, the Court dismissed Plaintiff’s April 6, 2016, complaint for failure to state a

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cognizable claim for relief and Plaintiff was granted thirty days to file an amended complaint. 28

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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 and failure to prosecute. (ECF No. 8 at

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7:1-2.) More than thirty days have passed, and Plaintiff has failed to file an amended complaint or

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otherwise 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 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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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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July 7, 2016
UNITED STATES MAGISTRATE JUDGE

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