(PC) Lake v. Covello et al

Filing 40

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 08/27/2024 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Daniel J. Calabretta. Objections within 14 days after being served with these Findings and Recommendations. (Murphy, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARIUS DE’MON LAKE,

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Plaintiff,

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v.

No. 2:23-cv-1311 DJC AC P

FINDINGS AND RECOMMENDATIONS

PATRICK COVELLO, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. On June 11, 2024, defendants filed a motion for judgment on the pleadings. ECF

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No. 35. After failing to respond, plaintiff was ordered to file an opposition or a statement of non-

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opposition to the pending motion within twenty-one days. ECF No. 39. In the same order,

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plaintiff was informed that failure to file an opposition would result in a recommendation that this

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action be dismissed without prejudice for failure to prosecute pursuant to Federal Rule of Civil

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Procedure 41(b). Id. The twenty-one-day period has now expired, and plaintiff has not filed a

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response to the motion for judgment on the pleadings or otherwise responded to the court’s order.

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In recommending this action be dismissed for failure to prosecute, the court has

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considered “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.” Ferdik v.
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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (citation omitted). Because this case cannot

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move forward without plaintiff’s participation, the court finds the factors weigh in favor of

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dismissal.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be
dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9Dth Cir. 1991).

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DATED: August 27, 2024

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