(PC) Kelly v. Newsom

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CARL KELLY, No. 2:23-CV-2581-DMC-P 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., and 15 Defendants. FINDINGS AND RECOMMENDATIONS 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 On May 13, 2024, the Court directed Plaintiff to file an amended complaint within 20 30 days. Plaintiff was warned that failure to file an amended complaint may result in dismissal of 21 this action for lack of prosecution and failure to comply with court rules and orders. See Local 22 Rule 110. To date, Plaintiff has not complied. 23 The Court must weigh five factors before imposing the harsh sanction of dismissal. 24 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 25 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 26 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 27 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 28 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 1 |} 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 2 || sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 3 | 833 F.2d at 132-33 &n.1. The sanction of dismissal for lack of prosecution is appropriate where 4 || there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 5 || 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 6 || order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 7 | 1992). 8 Having considered these factors, and in light of Plaintiff's failure to file an 9 || amended complaint as directed, the Court finds that dismissal of this action is appropriate. 10 Based on the foregoing, the undersigned orders and recommends as follows: 11 1. It is ORDERED that the Clerk of the Court is directed to randomly assign a 12 || District Judge to this case. 13 2. It is RECOMMENDED that action be dismissed, without prejudice, for 14 | lack of prosecution and failure to comply with court rules and orders. 15 3. It is RECOMMENDED that Plaintiffs motion for injunctive relief, ECF 16 || No. 4, be denied as moot. 17 These findings and recommendations are submitted to the United States District 18 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I). Within 14 days 19 || after being served with these findings and recommendations, any party may file written 20 || objections with the court. Responses to objections shall be filed within 14 days after service of 21 || objections. Failure to file objections within the specified time may waive the right to appeal. See 22 || Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 | Dated: July 1, 2024 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28