Wilson v. Wever et al
Filing
91
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 12/09/16 recommending that this action be dismissed without prejudice for lack of prosecution and failure to comply withy court rules and orders. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
MELVIN LEE WILSON,
12
No. 2:09-CV-2191-KJM-CMK-P
Plaintiff,
13
vs.
FINDINGS AND RECOMMENDATIONS
14
SANDRA LEE WEVER,
15
Defendant.
16
/
17
18
Plaintiff, a former prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983.
19
A review of the docket reflects that defendant was served on January 15, 2016,
20
but has not filed a response to the complaint and that plaintiff has not taken any steps to
21
prosecute following defendant’s failure to file a response to the complaint. On October 13, 2016,
22
plaintiff was directed to show cause in writing within 30 days why the action should not be
23
dismissed for lack of prosecution. See Local Rule 110. To date, plaintiff has not responded to
24
the court’s order to show cause or otherwise prosecuted this action.
25
///
26
///
1
1
The court must weigh five factors before imposing the harsh sanction of
2
dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.
3
U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's
4
interest in expeditious resolution of litigation; (2) the court's need to manage its own docket;
5
(3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on
6
their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,
7
46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an
8
appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.
9
See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is
10
appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,
11
1423 (9th Cir. 1986).
12
Upon consideration of these factors, the court finds that dismissal of the action is
13
an appropriate sanction. Plaintiff’s failure to prosecute thwarts both the public’s interest in
14
expeditious resolution of the case and the public policy favoring disposition on the merits.
15
Moreover, this court must manage its docket and terminate those actions where the plaintiff
16
demonstrates a lack of interest in prosecution. Finally, plaintiff has been warned throughout the
17
course of this litigation that lack of prosecution and failure to comply with court orders may
18
result in dismissal.
19
///
20
///
21
///
22
///
23
///
24
///
25
///
26
///
2
1
Based on the foregoing, the undersigned recommends that this action be
2
dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and
3
orders.
4
These findings and recommendations are submitted to the United States District
5
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
6
after being served with these findings and recommendations, any party may file written
7
objections with the court. Responses to objections shall be filed within 14 days after service of
8
objections. Failure to file objections within the specified time may waive the right to appeal.
9
See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
10
11
DATED: December 9, 2016
12
13
____________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?