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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN MONTENEGRO,

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Plaintiff,
v.
DR. SCHRFFENBERG, et.al.,
Defendants.

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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.

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On June 14, 2017, the Court dismissed Plaintiff’s first amended complaint and granted Plaintiff

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thirty days to file a second amended complaint, if he so desired. Plaintiff was warned that if he failed

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to comply, this action would be dismissed for failure to state a claim. More than thirty days have

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passed, and Plaintiff has not complied with or otherwise responded to the 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. This action can proceed

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no further without Plaintiff’s cooperation and compliance with the order at issue, and the action cannot

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simply remain idle on the Court’s docket, unprosecuted.

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RECOMMENDED that the instant action be dismissed for 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 twenty-one (21)

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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.3d 834, 838-39 (9th Cir. 2014)

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

Id.

Accordingly, it is HEREBY

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IT IS SO ORDERED.

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Dated:

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July 24, 2017
UNITED STATES MAGISTRATE JUDGE

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