Hughes v. CDCR

Filing 76

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/24/16 recommending that defendant's motion to dismiss for lack of prosecution 52 be denied. MOTION to DISMISS 52 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNARD HUGHES,

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No. 2:11-cv-1856-KJM-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

MARTIN H. JANSEN, M.D., et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. On August 4, 2015, after plaintiff’s limited appointment counsel failed to timely file an

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amended complaint, defendant Jansen moved to dismiss this action for failure to prosecute under

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Rule 41(b) of the Federal Rules of Civil Procedure. ECF No. 52. For the reasons stated below, it

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is recommended that the motion be denied.

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A district court must “weigh five factors to determine whether to dismiss a case for lack of

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prosecution: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring the

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Eisen,

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31 F.3d 1447, 1451 (9th Cir. 1994); accord, Southwest Marine Inc. v. Danzig, 217 F.3d 1128,

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1138 (9th Cir. 2000).

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After defendant filed the motion to dismiss, plaintiff’s limited appointment counsel filed a
second amended complaint in accordance with the court’s orders. ECF Nos. 59, 60. Defendant
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Jansen then moved to dismiss that complaint for failure to state a claim pursuant to Rule 12(b)(6).

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ECF No. 61. Plaintiff, now proceeding pro se, has opposed defendant’s motion and defendant has

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filed a reply. ECF Nos. 69, 71. In light of these filings, the court cannot find that the factors to

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consider in dismissing an action for failure to prosecute support dismissal.

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Accordingly, IT IS HEREBY RECOMMENDED that defendant’s motion to dismiss for
lack of prosecution (ECF No. 52) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 24, 2016.

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