Lucas v. Swarthout et al

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 04/29/11 recommending that this action be dismissed without prejudice for lack of prosecution and failure to comply with court rules and orders. U.S. District Judge Garland E. Burrell randomly assigned to this action. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISIAH LUCAS, JR.,

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No. CIV S-10-3252-CMK-P

Plaintiff,
vs.

ORDER

GARY SWARTHOUT, et al.,

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Defendants.

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/

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. On January 7, 22011, the court directed plaintiff to submit either a

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completed application for leave to proceed in forma pauperis or the full filing fee for this action

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within 30 days. On February 10, 2011, the court granted plaintiff’s request for an additional 30

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to comply with the order. Plaintiff was warned that failure to comply may result in dismissal of

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

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Rule 11-110. To date, plaintiff has failed to submit either the required application or the filing

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fee as ordered.

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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; (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 resolve the
fee status for this case as directed, 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

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dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and

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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: April 29, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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