Koch v. Bahaduer

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 7/6/2017 RECOMMENDING that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MARK FRANCIS KOCH, 11 12 13 No. 2:16-cv-1162-MCE-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATION BAHADUER, et al. 14 Defendants. / 15 Plaintiff, a former prisoner proceeding pro se, brings this civil rights action 16 pursuant to 42 U.S.C. § 1983. On May 15, 2017, the court directed plaintiff to file an amended 17 complaint within 30 days. Plaintiff was warned that failure to file an amended complaint may 18 result in dismissal of this action for lack of prosecution and failure to comply with court rules 19 and orders. See Local Rule 110. To date, plaintiff has not complied.1 20 The court must weigh five factors before imposing the harsh sanction of 21 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 22 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 23 24 1 25 26 Although it appears from the file that the order was returned, the parties were properly served. It is the responsibility of the parties to keep the court apprised of their address of record at all times. Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully effective. 1 1 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 2 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 3 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 4 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 5 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 6 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 7 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 8 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 9 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 10 1260-61 (9th Cir. 1992). 11 Having considered these factors, and in light of plaintiff’s failure to file an 12 amended complaint as directed, the court finds that dismissal of this action is appropriate. 13 Based on the foregoing, the undersigned recommends that this action be 14 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 15 orders. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court. Responses to objections shall be filed within 14 days after service of 20 objections. Failure to file objections within the specified time may waive the right to appeal. 21 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 DATED: July 6, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 2

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