Tramontana v. Paik et al

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/30/2018 RECOMMENDING this action be dismissed, without prejudice, for lack of prosecution and failure to comply with the court rules and orders. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRENCE TRAMONTANA,

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No. 2:17-CV-1506-KJM-DMC-P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

S. PAIK, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. On September 25, 2018, the court adopted the Magistrate Judge’s

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recommendation that plaintiff’s motion for leave to proceed in forma pauperis be denied and that

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plaintiff be required to pay the filing fees in full. See Doc. 12 (September 25, 2018, District

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Judge order). The court directed plaintiff to pay the filing fees in full within 30 days “or face

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dismissal of the action under Eastern District of California Local Rule 110.” Id. More than 30

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days have elapsed and plaintiff has failed to comply.

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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).
Having considered these factors, and in light of plaintiff’s failure to pay the filing

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fees for this case as directed by the District Judge, the court finds that dismissal of this action is

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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: November 30, 2018
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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