(PS) Clay v. Transworld Systems Inc. et al, No. 2:2019cv02221 - Document 9 (E.D. Cal. 2020)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 12/2/2020 RECOMMENDING that plaintiff's 1 Complaint be dismissed without prejudice and this action be closed. Matter REFERRED to District Judge John A. Mendez. Within 30 days after being served with these findings and recommendations, plaintiff may file written objections with the court. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME A. CLAY, 12 Plaintiff, 13 14 No. 2:19-cv-2221 JAM DB PS v. TRANSWORLD SYSTEMS INC., et al, 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff Jerome Clay is proceeding in this matter pro se. Accordingly, this action was 18 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 19 On November 4, 2019, plaintiff filed a complaint and motion to proceed in forma pauperis. (ECF 20 Nos. 1 & 2.) On April 10, 2020, the undersigned granted plaintiff’s motion for leave to proceed 21 in forma pauperis and screened plaintiff’s complaint. (ECF No. 5.) 22 On August 5, 2020, plaintiff filed a stipulated dismissal of defendant Transworld, which 23 was entered on August 6, 2020. (ECF Nos. 6 & 7.) After plaintiff took no further action, the 24 undersigned issued plaintiff an order to show cause on October 14, 2020. (ECF No. 8.) Pursuant 25 to that order plaintiff was to show cause in writing within fourteen days as to why this action 26 should not be dismissed due to a lack of prosecution. The fourteen-day period has long passed 27 and plaintiff has not responded to the court’s order in any manner. 28 //// 1 1 ANALYSIS 2 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 3 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 4 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 5 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 6 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 7 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 8 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 9 at 1260. Failure of a party to comply with the any order of the court “may be grounds for 10 11 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 12 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 13 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 14 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 15 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 16 Rules. Id. 17 Here, plaintiff failed to comply with an order of this court. Plaintiff was given an 18 opportunity to demonstrate an intent to prosecute this action and has failed to do so. In this 19 regard, plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions 20 futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to 21 manage its docket, and the risk of prejudice to the defendant all support the imposition of the 22 sanction of dismissal. Only the public policy favoring disposition on the merits counsels against 23 dismissal. However, plaintiff’s failure to prosecute the action in any way makes disposition on 24 the merits an impossibility. The undersigned will therefore recommend that this action be 25 dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply with the 26 Court’s orders. See Fed. R. Civ. P. 41(b). 27 //// 28 //// 2 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Plaintiff’s November 4, 2019 complaint (ECF No. 1) be dismissed without prejudice; 3 and 4 2. This action be closed. 5 These findings and recommendations will be submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 7 after being served with these findings and recommendations, plaintiff may file written objections 8 with the court. A document containing objections should be titled “Objections to Magistrate 9 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 10 the specified time may, under certain circumstances, waive the right to appeal the District Court’s 11 order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 Dated: December 2, 2020 13 14 15 DLB:6 DB/orders/orders.pro se/clay2221.dlop.f&rs 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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