Dearwester v. California Department of Corrections and Rehabilitation et al
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 10/16/20 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 due within 14 days. (Plummer, M)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FRANK LEE DEARWESTER,
FINDINGS AND RECOMMENDATIONS
CALIFORNIA DEPARTMENT OF
REHABILITATION, et al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. On July 13, 2020, the Court directed Plaintiff to file a second amended
complaint within 60 days. Plaintiff was warned that failure to comply may result in dismissal of
this action for lack of prosecution and failure to comply with court rules and orders. See Local
Rule 110. More than 60 days have elapsed and Plaintiff has not complied.
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. U.S. Postal
Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in
expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of
prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits;
and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52,
53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate
sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone,
833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where
there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an
order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
Having considered these factors, and in light of Plaintiff’s failure to file a second
amended complaint as directed, the Court finds that dismissal of this action is appropriate.
Based on the foregoing, the undersigned recommends that this action be dismissed,
without prejudice, for lack of prosecution and failure to comply with court rules and orders.
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
after being served with these findings and recommendations, any party may file written
objections with the court. Responses to objections shall be filed within 14 days after service of
objections. Failure to file objections within the specified time may waive the right to appeal. See
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: October 16, 2020
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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