Montenegro v. Schrffenberg

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 9 , 10 , signed by Magistrate Judge Stanley A. Boone on 7/24/17.: 21-Day Deadline.(Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN MONTENEGRO, 12 13 14 15 Plaintiff, v. DR. SCHRFFENBERG,, Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00422-AWI-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO COMPLY WITH A COURT ORDER AND FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF Nos. 9, 10] Plaintiff Juan Montenegro is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On June 14, 2017, the Court dismissed Plaintiff’s first amended complaint and granted Plaintiff 20 thirty days to file a second amended complaint, if he so desired. Plaintiff was warned that if he failed 21 to comply, this action would be dismissed for failure to state a claim. More than thirty days have 22 passed, and Plaintiff has not complied with or otherwise responded to the order. 23 The Court has the inherent power to control its docket and may, in the exercise of that power, 24 impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles Cnty., 25 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action, the Court must weigh 26 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 27 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 28 on their merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) 1 1 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted). 2 These factors guide a court in deciding what to do, and are not conditions that must be met in order for 3 a court to take action. Id. (citation omitted). 4 Based on Plaintiff’s failure to comply with or otherwise respond to the Court’s order, the Court 5 is left with no alternative but to dismiss the action for failure to prosecute. Id. This action can proceed 6 no further without Plaintiff’s cooperation and compliance with the order at issue, and the action cannot 7 simply remain idle on the Court’s docket, unprosecuted. 8 RECOMMENDED that the instant action be dismissed for failure to state a cognizable claim for relief. 9 This Findings and Recommendation will be submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21) 11 days after being served with this Findings and Recommendation, Plaintiff may file written objections 12 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 14 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 15 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Id. Accordingly, it is HEREBY 16 17 IT IS SO ORDERED. 18 Dated: 19 July 24, 2017 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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