(PC) Rojas v. KVSP ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE A. ROJAS, Case No. 1:18-cv-01095-LJO-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT CASE BE DISMISSED FOR FAILURE 13 v. TO STATE A CLAIM, FAILURE TO PROSECUTE, AND FAILURE TO COMPLY 14 KVSP, et al., WITH A COURT ORDER 15 Defendants. OBJECTIONS DUE IN FOURTEEN DAYS 16 17 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 18 under 42 U.S.C. § 1983. On May 6, 2019, I screened plaintiff’s complaint and found that he 19 failed to state a claim. ECF No. 11. I ordered plaintiff to amend his complaint and warned that 20 failure to comply with the order would result in dismissal of this action. See id. at 7. Plaintiff has 21 not filed an amended complaint. 22 The court may dismiss a case for plaintiff’s failure to prosecute or failure to comply with a 23 court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 24 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a court has a duty to 25 resolve disputes expeditiously. See Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 26 (9th Cir. 2002). 27 In considering whether to dismiss a case for failure to prosecute, a court ordinarily 28 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 1 || court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 2 || favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 3 || Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 4 | F.2d 1421, 1423 (9th Cir. 1986)). The fourth factor weighs against dismissal. But dismissal 5 || would promote expeditious resolution, see Pagtalunan, 291 F.3d at 642, and would allow our 6 || overburdened court to manage its docket more effectively. Further delay increases the risk that 7 || memories will fade and evidence will be lost, and at this stage in the proceeding there is no 8 || satisfactory lesser sanction that would protect the court’s scarce resources. Therefore, I find that 9 | the first, second, third, and fifth factors weigh in favor of dismissal, and I recommend dismissal 10 || without prejudice on that basis. 11 As more thoroughly discussed in my screening order, plaintiff has failed to state a claim 12 | against defendants, which provides an additional basis for dismissing this case. See ECF No. 11. 13 | Recommendations 14 I recommend that the case be dismissed for plaintiff's failures to state a claim, prosecute, 15 || and comply with a court order. I submit these findings and recommendations to the U.S. district 16 || judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 17 | fourteen days of the service of the findings and recommendations, the parties may file written 18 || objections to the findings and recommendations with the court and serve a copy on all patties. 19 | The document containing the objections must be captioned “Objections to Magistrate □□□□□□ □ 20 | Findings and Recommendations.” The presiding district judge will then review the findings and 21 | recommendations under 28 U.S.C. § 636(b)(1)(C). 22 73 IT IS SO ORDERED. 24 ( Catan Dated: _ October 30, 2019 25 UNIT#D STATES MAGISTRATE JUDGE 26 27 No. 204 28