Funtanilla v. Kelly, et al

Filing 242

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 04/24/15 RECOMMENDING that this action be dismissed without prejudice for lack of prosecution and failutre to comply with court orders; referred to Judge John A. Mendez; Objections to these F&Rs due within 14 days. (Benson, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORIO C. FUNTANILLA, JR.,

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No. 2:02-CV-1157-JAM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

MICHAEL JAFFE, et al.,
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. On December 9, 2014, the court directed plaintiff to file a status report within

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30 days. On February 3, 2015, the court extended the deadline for plaintiff to file his status

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report by 45 days. To date, plaintiff has failed to file a status report.

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The court must weigh five factors before imposing the harsh sanction of

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dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's

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interest in expeditious resolution of litigation; (2) the court's need to manage its own docket;

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(3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,
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46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an

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appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.

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See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is

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appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986).

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Given the length of time this matter has been pending, plaintiff’s failure to report

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on the status of this litigation defeats the public’s interest in expeditious resolution of the case.

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Plaintiff’s failure to comply also thwarts the court’s interest in managing its docket by moving

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cases forward to final resolution. Additionally, plaintiff’s failure to prosecute does now allow for

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resolution of the case on the merits. In light of these factors, and given the unavailability of a

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less drastic sanction, the court finds that dismissal of this action is appropriate.

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Based on the foregoing, the undersigned recommends that this action be dismissed
without prejudice for lack of prosecution and failure to comply with court orders.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 24, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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