Smith v. DVI State Prison, et al.,

Filing 7

ORDER signed by Magistrate Judge Craig M. Kellison on 5/23/2011 ORDERING that this action is DISMISSED, w/out prejudice, for lack of prosecution and failure to comply w/ court rules and orders; and the clerk to enter judgment and close this case. CASE CLOSED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH A. SMITH,

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Plaintiff,

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vs.

ORDER

D.V.I. STATE PRISON, et al.,
Defendants.

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No. CIV S-10-2558-CMK-P

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Plaintiff is apparently a former state prisoner, currently on parole. Proceeding pro

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se, plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented

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to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been

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served or appeared in the action.

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On April 6, 2011, the court directed plaintiff to file an amended complaint within

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30 days. Plaintiff was warned that failure to file an amended complaint may result in dismissal

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of this action for lack of prosecution and failure to comply with court rules and orders. See Local

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Rule 110. To date, plaintiff has not complied.

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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.
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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; (3)

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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). Dismissal has also been held to be an appropriate sanction for failure to

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comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992).

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Having considered these factors, and in light of plaintiff’s failure to file an

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amended complaint as directed, the court finds that dismissal of this action is appropriate.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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This action is dismissed, without prejudice, for lack of prosecution and

failure to comply with court rules and orders; and
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The Clerk of the Court is directed to enter judgment and close this case.

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DATED: May 23, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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