(PC) Holloway v. Carey et al, No. 2:2009cv01776 - Document 12 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/15/09 RECOMMENDING that this action be dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 20 days.(Dillon, M)

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(PC) Holloway v. Carey et al Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE HOLLOWAY, 12 Plaintiff, 13 14 No. CIV S-09-1776-GEB-CMK-P vs. FINDINGS AND RECOMMENDATIONS TOM L. CAREY, et al., 15 Defendants. 16 / 17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. On August 6, 2009, the court directed plaintiff to submit either a completed 19 application for leave to proceed in forma pauperis or the full filing fee for this action within 30 20 days. Plaintiff was warned that failure to comply may result in dismissal of this action for lack of 21 prosecution and failure to comply with court rules and orders. See Local Rule 11-110. To date, 22 plaintiff has failed to comply.1 23 /// 24 25 26 1 Another inmate, Charles G. Reece, who is proceeding in a related action, filed a notice with the court that Plaintiff had been paroled and no longer wishes to continue with this action. 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 15 Having considered these factors, and in light of plaintiff’s failure to resolve the fee status for this case as directed, the court finds that dismissal of this action is appropriate. 16 Based on the foregoing, the undersigned recommends that this action be 17 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 18 orders. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 2 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 3 after being served with these findings and recommendations, any party may file written 4 objections with the court. The document should be captioned “Objections to Magistrate Judge's 5 Findings and Recommendations.” Failure to file objections within the specified time may waive 6 the right to appeal. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 9 10 11 DATED: October 15, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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