(PS) Hubbard v. California Department of Corrections, No. 2:2009cv02162 - Document 9 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 04/21/10 RECOMMENDING that the 1 Complaint be dismissed, without prejudice. Objections to F&R due within 20 days. (Williams, D)
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(PS) Hubbard v. California Department of Corrections Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN VINCENT HUBBARD, 12 13 14 No. CIV S-09-2162-FCD-CMK Plaintiff, vs. FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendants. 16 17 / Plaintiff, a former state prisoner proceeding in pro se, brings this civil rights 18 action pursuant to 42 U.S.C. § 1983. On February 12, 2010, the court directed plaintiff to file an 19 amended complaint within 30 days. Plaintiff was warned that failure to file an amended 20 complaint may result in dismissal of this action for lack of prosecution and failure to comply 21 with court rules and orders. See Local Rule 11-110. To date, plaintiff has not complied. 22 The court must weigh five factors before imposing the harsh sanction of 23 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 24 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 25 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 26 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 1 Dockets.Justia.com 1 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 2 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 3 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 4 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 5 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 6 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 7 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 8 1260-61 (9th Cir. 1992). 9 Having considered these factors, and in light of plaintiff’s failure to file an 10 amended complaint as directed, the court finds that dismissal of this action is appropriate. 11 Based on the foregoing, the undersigned recommends that this action be 12 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 13 orders. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge's 18 Findings and Recommendations.” Failure to file objections within the specified time may waive 19 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 DATED: April 21, 2010 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 24 25 26 2
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