(PC) Spearman v. Hillberg et al

Filing 12

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 5/7/2024 DIRECTING the Clerk to assign a District Judge to this case. District Judge Daniel J. Calabretta and Magistrate Judge Dennis M. Cota for all further proce edings. It is further RECOMMENDED that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge Daniel J. Calabretta. Objections due within 14 days after being served with these Findings and Recommendations. New Case Number: 2:23-cv-0093 DJC DMC (PC). (Kyono, V)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REGINALD E. SPEARMAN,

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No. 2:23-CV-0093-DMC

Plaintiff,
v.

ORDER

RONALD W. HILLBERG, et al.,

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Defendants.

and
FINDINGS AND RECOMMENDATIONS

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Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983.

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On March 15, 2024, the Court directed Plaintiff to file an amended complaint

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within 30 days. Plaintiff was warned that failure to file an amended complaint may result in

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dismissal of this action for lack of prosecution and failure to comply with court rules and orders.

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See Local Rule 110. To date, Plaintiff has not 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 Plaintiff’s 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 orders and recommends as follows:

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1.

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It is ORDERED that the Clerk of the Court is directed to randomly assign a

District Judge to this case.
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It is RECOMMENDED 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: May 7, 2024

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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