Cook-Morales et al v. Davis et al

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 06/05/19 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 to these F&Rs due within 14 days. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FERNANDO REGGIE COOKMORALES, SR., et al.,
Plaintiff,

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No. 2:16-CV-2388-MCE-DMC

FINDINGS AND RECOMMENDATIONS
v.
CABRON MIREYA, et al.
Defendants.

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Plaintiffs, who are proceeding pro se, brings this civil action. On February 11,

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2019, the court directed plaintiffs to file a third amended complaint within 30 days. See ECF No.

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13. Plaintiffs were warned that failure to comply may result in dismissal of this action for lack of

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prosecution and failure to comply with court rules and orders. See Local Rule 110. On March

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26, 2019, the court granted plaintiffs an extension of time to comply and directed plaintiffs to file

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a third amended complaint within 30 days. See ECF No. 15. To date, plaintiffs have not

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complied.

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

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

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

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expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of
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prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52,

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53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate

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sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone,

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

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there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

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1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an

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order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992).

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

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

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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.

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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. See

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

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Dated: June 5, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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