Funtanilla v. Kelly, et al

Filing 252

FINDINGS and RECOMMENDATIONS recommending that this action be dismissed signed by Magistrate Judge Craig M. Kellison on 6/22/16: F&R referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Kaminski, H)

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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 February 22, 2016, the court directed plaintiff to file a pre-trial statement

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by May 2, 2016, and warned plaintiff that failure to comply could result in dismissal of the entire

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action. See Local Rule 110. To date, plaintiff has not filed a pre-trial statement.

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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 file a

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pre-trial statement defeats the public’s interest in expeditious resolution of the case. Plaintiff’s

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

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forward to final resolution. Additionally, plaintiff’s failure to prosecute does not 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: June 22, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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