Becker v. Fang et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 6/10/15 RECOMMENDING that 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.(Dillon, 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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JOSEPH BECKER,
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No. 2:12-cv-3040-KJM-CMK-P
Plaintiff,
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vs.
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K. FANG, et al.,
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FINDINGS AND RECOMMENDATION
Defendants.
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/
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
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42 U.S.C. § 1983. On February 6, 2015, the court directed plaintiff to file a status report within
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30 days. Plaintiff was warned that failure to file a status report may result in the imposition of
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appropriate sanctions, including dismissal of the action. See Local Rule 110. Plaintiff failed to
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respond to the court’s order. On April 30, 2015, plaintiff was ordered to show cause in writing,
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within 30 days, why this action should not be dismissed for failure to submit the status report as
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ordered. He was again warned that failure to respond may result in dismissal of the action for the
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reasons outlined above, as well as for failure to prosecute and comply with court rules and orders.
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See id. Plaintiff again failed to comply with the court’s order.
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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 file a status
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report as directed, and failure to respond to the court’s order to show cause, the undersigned finds
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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: June 10, 2015
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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