Lipsey v. Davey, et al.

Filing 12

ORDER Directing Clerk of Court to Randomly Assign a District Judge to this Action; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to Comply with a Court Order signed by Magistrate Judge Stanley A. Boone on 03/13/2018. Referred to Judge Drozd; Objections to F&R due by 4/2/2018.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY, JR.

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Plaintiff,
v.
D. DAVEY, et al.,
Defendants.

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Case No.: 1:17-cv-01706-SAB (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A DISTRICT JUDGE TO
THIS ACTION
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO COMPLY WITH A COURT
ORDER
[ECF No. 11]

Plaintiff Christopher Lipsey, Jr. is appearing pro se and in form pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action on December 19, 2017.
On February 6, 2018, the Court issued an order striking Plaintiff’s complaint for lack of

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signature as required by Federal Rule of Civil Procedure 11(a) and Local Rule 131. (ECF No. 11.)

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Plaintiff was granted thirty days to file an amended complaint complete with an original signature.

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(Id.) Plaintiff was warned that if he failed to comply, the Court would recommend that the action be

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dismissed for failure to comply with a court order. More than thirty days have passed, and Plaintiff

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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 recommend dismissal of the action. Id. This action can proceed no

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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. Id.

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Accordingly, this action is HEREBY RECOMMENDED that:

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This action be dismissed for failure to comply with a court order; and

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2.

The Clerk of Court is directed to randomly assign a District Judge to this action

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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 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with this Findings and Recommendation, Plaintiff may file written objections with

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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)).

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IT IS SO ORDERED.

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Dated:

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March 13, 2018
UNITED STATES MAGISTRATE JUDGE

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