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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORIO C. FUNTANILLA, JR., 12 13 14 15 16 17 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 18 42 U.S.C. § 1983. On December 9, 2014, the court directed plaintiff to file a status report within 19 30 days. On February 3, 2015, the court extended the deadline for plaintiff to file his status 20 report by 45 days. To date, plaintiff has failed to file a status report. 21 The court must weigh five factors before imposing the harsh sanction of 22 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 23 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 24 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; 25 (3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 26 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 1 1 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 2 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 3 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 4 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 5 1423 (9th Cir. 1986). 6 Given the length of time this matter has been pending, plaintiff’s failure to report 7 on the status of this litigation defeats the public’s interest in expeditious resolution of the case. 8 Plaintiff’s failure to comply also thwarts the court’s interest in managing its docket by moving 9 cases forward to final resolution. Additionally, plaintiff’s failure to prosecute does now allow for 10 resolution of the case on the merits. In light of these factors, and given the unavailability of a 11 less drastic sanction, the court finds that dismissal of this action is appropriate. 12 13 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. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. Responses to objections shall be filed within 14 days after service of 18 objections. Failure to file objections within the specified time may waive the right to appeal. 19 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 DATED: April 24, 2015 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 24 25 26 2

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