(PC) Pacheco v. Diaz et al, No. 1:2019cv00774 - Document 11 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of the 1 Action for Failure to State a Cognizable Claim for Relief and Failure to Comply with a Court Order signed by Magistrate Judge Stanley A. Boone on 10/10/2019. Referred to Judge O'Neill; Objections to F&R due by 10/28/2019. (Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESUS PACHECO, 12 13 14 15 Plaintiff, v. RALPH DIAZ, et al., Defendants. 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:19-cv-00774-LJO-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THE ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF AND FAILURE TO COMPLY WITH A COURT ORDER [ECF No. 9] Plaintiff Jesus Pacheco is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 4, 2019, the Court screened Plaintiff’s complaint, determined he failed to state a 21 cognizable claim for relief, and granted Plaintiff the opportunity to amend the complaint within thirty 22 days. Over thirty days have passed and Plaintiff has not filed an amended complaint or otherwise 23 responded to the Court’s order. Accordingly, dismissal of the action is appropriate. As a result, there 24 is no pleading on file which sets forth any claims upon which relief may be granted. 25 The Court has the inherent power to control its docket and may, in the exercise of that power, 26 impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles Cnty., 27 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action, the Court must weigh 28 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 1 1 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 2 merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) Prod. Liab. 3 Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted). These factors 4 guide a court in deciding what to do and are not conditions that must be met in order for a court to take 5 action. Id. (citation omitted). 6 Based on Plaintiff’s failure to comply with or otherwise respond to the Court’s order, the Court 7 is left with no alternative but to dismiss the action for failure to prosecute. Id. This action can proceed 8 no further without Plaintiff’s cooperation and compliance with the order at issue, and the action cannot 9 simply remain idle on the Court’s docket, unprosecuted. Id. Accordingly, it is HEREBY 10 RECOMMENDED this action be DISMISSED, for failure to obey a court order, failure to prosecute, 11 and for failure to state a cognizable claim for relief. This Findings and Recommendation will be submitted to the United States District Judge 12 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 14 after being served with this Findings and Recommendation, Plaintiff may file written objections with 15 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 17 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 18 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: 22 October 10, 2019 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2