-CMK (PC) Lucas v. Swarthout et al, No. 2:2010cv03252 - Document 12 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 04/29/11 recommending that this action be dismissed without prejudice for lack of prosecution and failure to comply with court rules and orders. U.S. District Judge Garland E. Burrell randomly assigned to this action. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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-CMK (PC) Lucas v. Swarthout et al Doc. 12 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ISIAH LUCAS, JR., 10 11 12 No. CIV S-10-3252-CMK-P Plaintiff, vs. ORDER GARY SWARTHOUT, et al., 13 Defendants. 14 / 15 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 16 to 42 U.S.C. § 1983. On January 7, 22011, the court directed plaintiff to submit either a 17 completed application for leave to proceed in forma pauperis or the full filing fee for this action 18 within 30 days. On February 10, 2011, the court granted plaintiff’s request for an additional 30 19 to comply with the order. Plaintiff was warned that failure to comply may result in dismissal of 20 this action for lack of prosecution and failure to comply with court rules and orders. See Local 21 Rule 11-110. To date, plaintiff has failed to submit either the required application or the filing 22 fee as ordered. 23 The court must weigh five factors before imposing the harsh sanction of 24 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 25 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 26 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 1 Dockets.Justia.com 1 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 2 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 3 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 4 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 5 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 6 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 7 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 8 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 9 1260-61 (9th Cir. 1992). 10 11 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. 12 Based on the foregoing, the undersigned recommends that this action be 13 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 14 orders. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court. Responses to objections shall be filed within 14 days after service of 19 objections. Failure to file objections within the specified time may waive the right to appeal. 20 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 23 24 DATED: April 29, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 25 26 2