Dearwester v. California Department of Corrections and Rehabilitation et al

Filing 20

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)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK LEE DEARWESTER, 12 13 14 15 16 No. 2:15-CV-0443-KJM-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants. 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. On July 13, 2020, the Court directed Plaintiff to file a second amended 20 complaint within 60 days. Plaintiff was warned that failure to comply may result in dismissal of 21 this action for lack of prosecution and failure to comply with court rules and orders. See Local 22 Rule 110. More than 60 days have elapsed and Plaintiff has not complied. 23 The Court must weigh five factors before imposing the harsh sanction of dismissal. 24 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 25 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 26 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 27 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 28 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 1 1 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 2 sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 3 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 4 there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 5 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 6 order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 7 1992). 8 9 10 11 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. 12 These findings and recommendations are submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court. Responses to objections shall be filed within 14 days after service of 16 objections. Failure to file objections within the specified time may waive the right to appeal. See 17 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 20 Dated: October 16, 2020 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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