(HC) Simpson v. County of Stanislaus, No. 2:2007cv02107 - Document 25 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/17/09 RECOMMENDING that the Clerk of the Court is directed to update the docket to reflect that S. Moore is the correct respondent and to terminate County of Stanislaus; and this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 20 days.(Dillon, M)

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(HC) Simpson v. County of Stanislaus Doc. 25 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY JOE SIMPSON, JR., 12 Petitioner, 13 14 No. CIV S-07-2107-LKK-CMK-P vs. FINDINGS AND RECOMMENDATIONS S. MOORE,1 15 Respondent. 16 / 17 Petitioner, a former state prisoner proceeding pro se, brings this petition for a writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. On October 2, 2009, the court dismissed 19 petitioner’s petition and directed petitioner to file an amended petition within 30 days. Petitioner 20 was warned that failure to file an amended petition may result in dismissal of this action for lack 21 of prosecution and failure to comply with court rules and orders. See Local Rule 11-110. To 22 date, petitioner has not complied. 23 /// 24 /// 25 1 26 The Clerk of the Court will be directed to update the caption to reflect that the respondent named in the amended petition is S. Moore. 1 Dockets.Justia.com 1 The court must weigh five factors before imposing the harsh sanction of 2 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 3 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 4 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 5 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 6 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 7 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 8 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 9 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 10 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 11 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 12 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 13 1260-61 (9th Cir. 1992). 14 Having considered these factors, and in light of petitioner’s failure to file an 15 amended petition as directed, the court finds that dismissal of this action is appropriate. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 2 1 Based on the foregoing, the undersigned recommends that: 2 1. 3 4 5 The Clerk of the Court is directed to update the docket to reflect that S. Moore is the correct respondent and to terminate County of Stanislaus; and 2. This action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court. The document should be captioned “Objections to Magistrate Judge's 10 Findings and Recommendations.” Failure to file objections within the specified time may waive 11 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 14 15 DATED: November 17, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 3

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