(PC) Guerra v. Rosales

Opinion

JAVIER H. GUERRA, No. 2:20-CV-0836-DJC-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS Defendant. Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. A review of the docket reflects that all defendants other than A. Martinez have been dismissed from this action. As to Defendant A. Martinez, summons was returned unexecuted on October 7, 2021. See ECF No. 22. On February 27, 2023, Plaintiff was directed to show cause in writing within 30 days why this action should not be dismissed for failure to effect timely service on the sole remaining defendant pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff was cautioned that failure to comply could result in dismissal of the entire action for lack of prosecution. See Local Rule 110. To date, Plaintiff has not responded to the February 27, 2023, order to show cause or served Defendant Martinez. / / / / / / ] The Court must weigh five factors before imposing the harsh sanction of dismissal for lack of prosecution. 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). Having considered these factors, and in light of Plaintiff's failure to serve Defendant Martinez or respond to the Court’s February 27, 2023, order to show cause, 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)(I). 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. Yist, 951 F.2d 1153 (9th Cir. 1991). Dated: April 28, 2023 Co UNITED STATES MAGISTRATE JUDGE