(PC) Benton v. Maldonado et al

Filing 12

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 8/28/2024 ASSIGNING this CASE to Chief District Judge Kimberly J. Mueller and Magistrate Judge Dennis M. Cota for all further proceedings. The New Case Number i s: 2:23-cv-02882-KJM-DMC. IT IS RECOMMENDED this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. IT IS RECOMMENDED that Plaintiff's Motion for Injunctive Relief 9 be denied as moot. These Findings and Recommendations are submitted to Chief Judge Kimberly J. Mueller; Objections to these F&Rs due by within 14 days. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RYAN BENTON,

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No. 2:23-CV-2882-DMC-P
Plaintiff,

v.

ORDER

C. MALDONADO, et al.,

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Defendants.

and
FINDINGS AND RECOMMENDATIONS

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983.
On July 12, 2024, the Court directed Plaintiff to file an amended complaint within

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

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

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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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It is RECOMMENDED that Plaintiff's motion for injunctive relief, ECF

No. 9, be DENIED as moot.

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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: August 28, 2024

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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