(PC) Tramontana v. Paik et al, No. 2:2017cv01506 - Document 13 (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 the court rules and orders. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)
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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 TERRENCE TRAMONTANA, 12 13 14 15 No. 2:17-CV-1506-KJM-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS S. PAIK, et al., Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. On September 25, 2018, the court adopted the Magistrate Judge’s 19 recommendation that plaintiff’s motion for leave to proceed in forma pauperis be denied and that 20 plaintiff be required to pay the filing fees in full. See Doc. 12 (September 25, 2018, District 21 Judge order). The court directed plaintiff to pay the filing fees in full within 30 days “or face 22 dismissal of the action under Eastern District of California Local Rule 110.” Id. More than 30 23 days have elapsed and plaintiff has failed to comply. 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). Having considered these factors, and in light of plaintiff’s failure to pay the filing 9 10 fees for this case as directed by the District Judge, the court finds that dismissal of this action is 11 appropriate. 12 13 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. 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 14 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. Responses to objections shall be filed within 14 days after service of 18 objections. Failure to file objections within the specified time may waive the right to appeal. See 19 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 Dated: November 30, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2