Martinez v. Hoover, et al

Filing 88

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 9/15/2016 RECOMMENDING this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ARCHIE A. MARTINEZ, 10 11 12 13 14 No. 09-cv-0680-KJM-CMK-P Plaintiff, vs. ORDER G. HOOVER, et al., Defendants. / 15 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 16 to 42 U.S.C. § 1983. On August 5, 2016, the court directed plaintiff to file a status report within 17 20 days, and defendants to file a status report within 35 days. The court required the status 18 reports from the parties in order to determine how much additional time was needed to complete 19 discovery and file dispositive motions. Defendants filed their status report on September 9, 20 2016. No status report has been received from plaintiff. In addition, defendants indicate they 21 have not received any communication from plaintiff nor has plaintiff paid the sanctions ordered 22 in 2012. Local Rule 110 provides for the imposition sanctions for failure to comply with the 23 local rules and any order of the court. 24 The court must weigh five factors before imposing the harsh sanction of 25 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 26 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 1 1 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 2 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 3 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 4 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 5 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 6 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 7 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 8 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 9 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 10 1260-61 (9th Cir. 1992). 11 12 Having considered these factors, and in light of plaintiff’s failure to file a status report as ordered, the court finds that dismissal of this action is appropriate. 13 Based on the foregoing, the undersigned recommends that this action be 14 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 15 orders. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court. Responses to objections shall be filed within 14 days after service of 20 objections. Failure to file objections within the specified time may waive the right to appeal. 21 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 DATED: September 15, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 2

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