(PC) Lawrence v. Newsom, et al.

Filing 32

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 5/7/2024 RECOMMENDING that this action be dismissed, without prejudice, for lack of prosecution and 26 Motion for Injunctive Relief be denied as moot. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these Findings and Recommendations. (Kyono, V)

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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 RISHARDO LAWRENCE, 12 Plaintiff, 13 14 15 v. No. 2:22-CV-1975-WBS-DMC-P FINDINGS AND RECOMMENDATIONS GAVIN NEWSOM, et al., Defendants. 16 17 18 Plaintiff, a prisoner proceeding with retained counsel, brings this civil rights action pursuant to 42 U.S.C. § 1983. 19 On March 21, 2024, the Court directed Plaintiff to file an amended complaint 20 within 30 days. Plaintiff was warned that failure to file an amended complaint may result in 21 dismissal of this action for lack of prosecution and failure to comply with court rules and orders. 22 See Local Rule 110. To date, Plaintiff has not complied. 23 The Court must weigh five factors before imposing the harsh sanction of dismissal. 24 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 25 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 26 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 27 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 28 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 1 1 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 2 sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 3 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 4 there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 5 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 6 order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 7 1992). 8 Having considered these factors, and in light of Plaintiff’s failure to file an 9 amended complaint as directed, the Court finds that dismissal of this action is appropriate. 10 Based on the foregoing, the undersigned recommends as follows: 11 1. 12 failure to comply with court rules and orders. 13 14 This action be dismissed, without prejudice, for lack of prosecution and 2. Plaintiff’s pending motion for injunctive relief, ECF No. 26, be denied as moot. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court. Responses to objections shall be filed within 14 days after service of 19 objections. Failure to file objections within the specified time may waive the right to appeal. See 20 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 Dated: May 7, 2024 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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