-GBC (PC) Mitchell v. Davis et al, No. 1:2009cv00691 - Document 27 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, Based on Plaintiff's Failure to Prosecute re 12 First Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Gerald B. Cohn on 12/14/2011. Referred to Judge O'Neill. Objections to F&R due within fifteen (15) days. (Jessen, A)
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-GBC (PC) Mitchell v. Davis et al Doc. 27 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SHAULTON J. MITCHELL, 10 11 12 13 Plaintiff, v. CASE NO. 1:09-cv-00691-LJO-GBC (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE B.S. DAVIS, et al., Defendants. / OBJECTIONS DUE WITHIN FIFTEEN DAYS 14 15 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action 16 pursuant to 42 U.S.C. § 1983. On July 26, 2011, the Court ordered Plaintiff to submit additional 17 information for service of Defendant B.S. Davis within thirty days. On August 5, 2011, the Court 18 granted Plaintiff’s motion for extension of time to provide additional information for service of 19 Defendant B.S. Davis. On September 20, 2011, the Court issued an order to show cause why this 20 action should not be dismissed for failure to obey a court order. More than thirty days have passed, 21 and Plaintiff has not complied with or otherwise responded to the Court’s orders. 22 The Court has the inherent power to control its docket and may, in the exercise of that power, 23 impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles 24 County, 216 F.3d 837, 841 (9th Cir. 2000). “In determining whether to dismiss an action for lack of 25 prosecution, the district court is required to consider several factors: (1) the public’s interest in 26 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 27 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 28 (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) Page 1 of 2 Dockets.Justia.com 1 (citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in 2 deciding what to do and are not conditions that must be met in order for a court to take action. In re 3 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). 4 Based on Plaintiff’s failure to comply with or otherwise respond to court orders, the Court 5 is left with no alternative but to dismiss the action for failure to prosecute. This action can proceed 6 no further without Plaintiff’s cooperation and compliance with the orders at issue and cannot simply 7 remain idle on the Court’s docket. Accordingly, the undersigned HEREBY RECOMMENDS that 8 this action be DISMISSED, without prejudice, based on Plaintiff’s failure to prosecute. 9 These Findings and Recommendations will be submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen (15) days 11 after being served with these Findings and Recommendations, Plaintiff may file written objections 12 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 14 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. 17 18 Dated: 0jh02o December 14, 2011 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 Page 2 of 2