(PC) Markham v. Prasad et al

Filing 56

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 2/6/2024 RECOMMENDING that this action 1 be dismissed without prejudice, for lack of prosecution and failure to comply with court rules and orders. These Findings and Recommendations are submitted to U.S. District Judge Daniel J. Calabretta; Objections to these F&Rs due within 14 days. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT MARKHAM, 12 13 14 15 No. 2:21-CV-0996-DJC-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS A. PRASAD, et al., Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. On December 19, 2023, the Court directed Plaintiff to file a status report 19 within 30 days. Plaintiff was warned that failure to file an amended complaint may result in 20 dismissal of this action for lack of prosecution and failure to comply with court rules and orders. 21 See Local Rule 110. To date, Plaintiff has not complied. 22 The Court must weigh five factors before imposing the harsh sanction of dismissal. 23 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 24 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 25 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 26 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 27 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 28 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 1 1 sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 2 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 3 there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 4 1986). 5 6 7 8 Having considered these factors, and in light of Plaintiff’s failure to file a status report as directed, the Court finds that dismissal of this action is appropriate. 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. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court. Responses to objections shall be filed within 14 days after service of 13 objections. Failure to file objections within the specified time may waive the right to appeal. See 14 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 Dated: February 6, 2024 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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