(PS) Bird v. Porter

Opinion

DONALD M. BIRD, No. 2:23-cv-2466-DJC-SCR Plaintiff, v. FINDINGS AND RECOMMENDATION Defendant. Plaintiff Donald M. Bird is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On October 26, 2023, Plaintiff filed a complaint and a motion to proceed in forma pauperis (“IFP”). ECF Nos. 1 and 2. On April 22, 2024, this court screened the complaint per the screening process required by the IFP statute and dismissed the complaint for failure to comply with Federal Rule of Civil Procedure 8 and failure to state a claim.1 ECF No. 3. The order provided in relevant part that within 28 days “an amended complaint shall be filed that cures the defects noted in this order and complies with the Federal Rules of Civil Procedure.” ECF No. 3 at 5-6. The order further cautioned that failure to comply with the order may result in dismissal of the action. ECF No. 3 at 6. Plaintiff did not file an amended complaint. 1 The Court did not rule on Plaintiff’s motion to proceed IFP at that time, and does not do so now in light of the recommendation to dismiss. Dismissal would render the IFP issue moot. On August 27, 2024, this Court issued an Order to Show Cause directing Plaintiff to show cause, in writing, within 14 days why the failure to file an amended complaint should not result in arecommendation that this case be dismissed for failure to prosecute. The Order to Show Cause further provided that if Plaintiff failed to respond, this Court “will recommend dismissal.” ECF No. 5 at 2. More than 14 days have passed, and Plaintiff has not filed a response. In recommending this action be dismissed for failure to prosecute, the Court has considered “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (citation omitted). Because this case cannot move forward without Plaintiffs participation, the Court finds the factors weigh in favor of dismissal. Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed, without prejudice, for lack of prosecution and for failure to comply with the court’s order. See Fed. R. Civ. P. 41(b); Local Rule 110. These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, Plaintiff may file written objections with the court. Such document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). DATED: September 23, 2024

SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE