Funtanilla v. Kelly, et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GREGORIO C. FUNTANILLA, JR.,
FINDINGS AND RECOMMENDATIONS
MICHAEL JAFFE, et al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. On December 9, 2014, the court directed plaintiff to file a status report within
30 days. On February 3, 2015, the court extended the deadline for plaintiff to file his status
report by 45 days. To date, plaintiff has failed to file a status report.
The court must weigh five factors before imposing the harsh sanction of
dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.
U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's
interest in expeditious resolution of litigation; (2) the court's need to manage its own docket;
(3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on
their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,
46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an
appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.
See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is
appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,
1423 (9th Cir. 1986).
Given the length of time this matter has been pending, plaintiff’s failure to report
on the status of this litigation defeats the public’s interest in expeditious resolution of the case.
Plaintiff’s failure to comply also thwarts the court’s interest in managing its docket by moving
cases forward to final resolution. Additionally, plaintiff’s failure to prosecute does now allow for
resolution of the case on the merits. In light of these factors, and given the unavailability of a
less drastic sanction, the court finds that dismissal of this action is appropriate.
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.
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
after being served with these findings and recommendations, any party may file written
objections with the court. Responses to objections shall be filed within 14 days after service of
objections. Failure to file objections within the specified time may waive the right to appeal.
See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: April 24, 2015
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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