Kononov v. Sacramento County Sheriff Department et al

Filing 19

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 7/6/2017 RECOMMENDING this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

VITALY V. KONONOV,

12
13
14

No. 2:15-cv-1324-GEB-CMK

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

SACRAMENTO COUNTY SHERIFF
DEPARTMENT, et al.,

15
Defendants.
16
17

/
Plaintiff, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. §

18

1983. On May 15, 2017, the court directed plaintiff to file an amended complaint within 30 days.

19

Plaintiff was warned that failure to file an amended complaint may result in dismissal of this

20

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

21

110. To date, plaintiff has not complied.

22

The court must weigh five factors before imposing the harsh sanction of

23

dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.

24

U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's

25

interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3)

26

the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on
1

1

their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,

2

46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an

3

appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.

4

See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is

5

appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,

6

1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to

7

comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

8

1260-61 (9th Cir. 1992).

9

Having considered these factors, and in light of plaintiff’s failure to file an

10

amended complaint as directed, the court finds that dismissal of this action is appropriate.

11

Based on the foregoing, the undersigned recommends that this action be

12

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

13

orders.

14

These findings and recommendations are submitted to the United States District

15

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

16

after being served with these findings and recommendations, any party may file written

17

objections with the court. Responses to objections shall be filed within 14 days after service of

18

objections. Failure to file objections within the specified time may waive the right to appeal.

19

See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20
21
22
23

DATED: July 6, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

24
25
26
2