(PC) Pacheco v. Diaz et al

Filing 11

FINDINGS and RECOMMENDATIONS Recommending Dismissal of the 1 Action for Failure to State a Cognizable Claim for Relief and Failure to Comply with a Court Order signed by Magistrate Judge Stanley A. Boone on 10/10/2019. Referred to Judge O'Neill; Objections to F&R due by 10/28/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESUS PACHECO,

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Plaintiff,
v.
RALPH DIAZ, et al.,
Defendants.

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Case No.: 1:19-cv-00774-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THE
ACTION FOR FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF AND
FAILURE TO COMPLY WITH A COURT
ORDER
[ECF No. 9]

Plaintiff Jesus Pacheco is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On September 4, 2019, the Court screened Plaintiff’s complaint, determined he failed to state a

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cognizable claim for relief, and granted Plaintiff the opportunity to amend the complaint within thirty

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days. Over thirty days have passed and Plaintiff has not filed an amended complaint or otherwise

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responded to the Court’s order. Accordingly, dismissal of the action is appropriate. As a result, there

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is no pleading on file which sets forth any claims upon which relief may be granted.

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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 docket;
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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) Prod. Liab.

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Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted). These factors

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guide a court in deciding what to do and are not conditions that must be met in order for a court to take

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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.

Id.

Accordingly, it is HEREBY

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RECOMMENDED this action be DISMISSED, for failure to obey a court order, failure to prosecute,

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and for failure to state a cognizable claim for relief.
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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October 10, 2019
UNITED STATES MAGISTRATE JUDGE

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