Miller v. National Railroad Passenger Corp., et al.

Filing 7

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/5/2017 RECOMMENDING that this action be dismissed without prejudice for failure to comply with court orders; Referred to Judge Troy L. Nunley; Objections due within 14 days after being served with these F & R's.(Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CRAIG GARRETT MILLER,

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Plaintiff,

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No. 2:17-CV-1273-TLN-CMK

vs.

FINDINGS AND RECOMMENDATIONS

NATIONAL RAILROAD
PASSENGER CORP., et al.,

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Defendants.
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Plaintiff, who is proceeding pro se, brings this civil action. On August 8, 2017,

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the court granted plaintiff’s application for leave to proceed in forma pauperis and determined

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that plaintiff’s complaint was appropriate for service by the United States Marshal without

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prepayment of costs therefor. Plaintiff was directed to forward completed service documents to

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the United States Marshal and to inform the court that he has done so within 20 days of the

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court’s order. Plaintiff was warned that failure to comply could result in dismissal of the entire

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action. See Local Rule 110. To date, plaintiff has failed to comply or otherwise serve process on

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defendants.

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

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

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

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

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

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

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

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

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

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

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

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follow local rules. See Ghazali, 46 F.3d at 53.

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Here, plaintiff’s failure to comply with the court’s August 8, 2017, order to

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provide the documents necessary for service of the complaint thwarts the public’s interest in

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expeditious resolution of the case on the merits as well as the court’s interest in managing its

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docket. The court imposed a less drastic sanction by way of it’s warning that non-compliance

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could result in dismissal.

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Based on the foregoing, the undersigned recommends that this action be dismissed
without prejudice for failure to comply with court 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.

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

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DATED: October 5, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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