From Casetext: Smarter Legal Research

Dearwester v. Cal. Dep't of Corr. & Rehab.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Oct 16, 2020
No. 2:15-CV-0443-KJM-DMC-P (E.D. Cal. Oct. 16, 2020)

Opinion

No. 2:15-CV-0443-KJM-DMC-P

10-16-2020

FRANK LEE DEARWESTER, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.


FINDINGS AND RECOMMENDATIONS

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On July 13, 2020, the Court directed Plaintiff to file a second amended complaint within 60 days. Plaintiff was warned that failure to comply may result in dismissal of this action for lack of prosecution and failure to comply with court rules and orders. See Local Rule 110. More than 60 days have elapsed and Plaintiff has not complied.

The Court must weigh five factors before imposing the harsh sanction of dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992).

Having considered these factors, and in light of Plaintiff's failure to file a second amended complaint 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.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: October 16, 2020

/s/_________

DENNIS M. COTA

UNITED STATES MAGISTRATE JUDGE


Summaries of

Dearwester v. Cal. Dep't of Corr. & Rehab.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Oct 16, 2020
No. 2:15-CV-0443-KJM-DMC-P (E.D. Cal. Oct. 16, 2020)
Case details for

Dearwester v. Cal. Dep't of Corr. & Rehab.

Case Details

Full title:FRANK LEE DEARWESTER, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS…

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Oct 16, 2020

Citations

No. 2:15-CV-0443-KJM-DMC-P (E.D. Cal. Oct. 16, 2020)