(PS) Durlin v. Robinson, No. 2:2021cv01495 - Document 5 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/8/2021 RECOMMENDING that Plaintiff's Claims be dismissed with prejudice pursuant to FRCP 41(b). Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Donati, J)

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(PS) Durlin v. Robinson Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CODY J. DURLIN, 12 No. 2:21-cv-1495-TLN-KJN PS Plaintiff, 13 v. 14 FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE SHAYNE M. ROBINSON, et al. 15 Defendants. 16 17 On October 12, 2021, the court granted plaintiff’s application to proceed in forma 18 pauperis but found plaintiff’s complaint unsuitable for service. 1 (ECF No. 3.) Plaintiff was given 19 30 days to file a first amended complaint and cautioned that failure to timely comply with the 20 order could result in a recommendation that this action be dismissed. (Id.) When that deadline 21 passed without any further filings from plaintiff, on November 18, 2021, the court issued an order 22 to show cause why the case should not be dismissed with prejudice under Federal Rule of Civil 23 Procedure 41(b) for failure to prosecute. (ECF No. 4.) Plaintiff was given 14 days to respond 24 and was warned that failure to timely comply “will result” in a recommendation of dismissal with 25 prejudice. That extended deadline also passed, with no response from plaintiff. Accordingly, the 26 undersigned now recommends dismissing this case with prejudice under Rule 41(b). 27 28 1 Because plaintiff is self-represented, the case is referred to the undersigned for all pretrial proceedings pursuant to 28 U.S.C § 636 and Local Rule 302(c)(21). 1 Dockets.Justia.com 1 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 2 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 3 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 4 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 5 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 6 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 7 under Rule 41(b)). 8 9 After weighing the five factors for determining whether to involuntarily dismiss a case, the court finds that dismissal is warranted. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th 10 Cir. 1992). This case is being delayed by plaintiff’s failure to prosecute, and any defendants 11 against whom a claim might be brought are being deprived of an opportunity to understand that 12 claim and prepare their defense. Without any action by plaintiff, the case may linger on the 13 court’s docket indefinitely. Plaintiff’s failure to respond in any way to the court’s orders leaves 14 little alternative but to recommend dismissal. 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 1. Plaintiff’s claims be DISMISSED with prejudice pursuant to Federal Rule of Civil Procedure 41(b); and 17 18 2. The Clerk of Court be directed to close this case. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 21 after being served with these findings and recommendations, plaintiff may file written objections 22 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 23 and Recommendations.” Plaintiff is advised that failure to file objections within the specified time 24 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 25 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 26 Dated: December 8, 2021 27 durl.1495 28 2

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