(PC) Maxwell v. Mitchell et al, No. 2:2015cv00015 - Document 30 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/30/2018 RECOMMENDING this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PAUL MAXWELL, 12 13 14 15 No. 2:15-CV-0015-JAM-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS RYON MITCHELL, et al., Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. On August 31, 2018, the court determined that plaintiff’s complaint was 19 appropriate for service and directed plaintiff to submit documents for service by the United States 20 Marshal within 30 days. On October 11, 2018, the court granted plaintiff a 30-day extension of 21 time to submit service documents. Plaintiff was warned that failure to submit the required 22 documents may result in dismissal of this action for lack of prosecution and failure to comply 23 with court rules and orders. See Local Rule 110. To date, plaintiff has not complied. 24 The court must weigh five factors before imposing the harsh sanction of dismissal. 25 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 26 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 27 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 28 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 1 1 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 2 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 3 sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 4 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 5 there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 6 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 7 order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 8 1992). 9 10 11 12 Having considered these factors, and in light of plaintiff’s failure to submit service documents as directed, the court finds that dismissal of this action is appropriate. Based on the foregoing, the undersigned recommends that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court. Responses to objections shall be filed within 14 days after service of 17 objections. Failure to file objections within the specified time may waive the right to appeal. See 18 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 Dated: November 30, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2