(PC) McCoy v. Sacramento Police Department

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME ELI MCCOY, No. 2:23-CV-1636-DMC-P 12 Plaintiff, 13 v. ORDER 14 POWDER, also known as Dustin Smith, and 15 Defendant. FINDINGS AND RECOMMENDATIONS 16

17 Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. 19 On May 23, 2024, the Court determined that Plaintiff’s complaint was appropriate 20 for service and directed Plaintiff to submit documents for service by the United States Marshal 21 within 30 days. Plaintiff was warned that failure to submit the required documents may result in 22 dismissal of this action for lack of prosecution and failure to comply with court rules and orders. 23 See Local Rule 110. To date, Plaintiff has not complied. 24 The Court must weigh five factors before imposing the harsh sanction of dismissal. 25 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 26 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 27 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 28 1 | prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 2 || and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 3 || 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 4 || sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 5 || 833 F.2d at 132-33 &n.1. The sanction of dismissal for lack of prosecution is appropriate where 6 || there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 7 || 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 8 | order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 9 | 1992). 10 Having considered these factors, and in light of Plaintiffs failure to submit service 11 || documents as directed, the Court finds that dismissal of this action is appropriate. 12 Based on the foregoing, the undersigned order and recommends as follows: 13 1. It is ORDERED that the Clerk of the Court is directed to randomly assign a 14 | District Judge to this case. 15 2. It is RECOMMENDED that this action be dismissed, without prejudice, 16 | for lack of prosecution and failure to comply with court rules and orders. 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)(1). 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. Yist, 951 F.2d 1153 (9th Cir. 1991). 23 24 || Dated: July 10, 2024 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28