(PC) Sermeno v. Allison ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY ALTAMIRANO SERMENO, No. 2:18-CV-1039-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 KATHLEEN ALLISON, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. On December 19, 2019, the District Judge directed plaintiff to file an amended 19 complaint within 30 days. Plaintiff was warned that failure to file an amended complaint may 20 result in dismissal of this action for lack of prosecution and failure to comply with court rules and 21 orders. See Local Rule 110. To date, plaintiff has not complied. 22 The court must weigh five factors before imposing the harsh sanction of dismissal. 23 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 24 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 25 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 26 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 27 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 28 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 1 | sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 2 | 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 3 | there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 4 | 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 5 | order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 6 | 1992). 7 Having considered these factors, and in light of plaintiff’s failure to file an 8 | amended complaint as directed, the court finds that dismissal of this action is appropriate. 9 Based on the foregoing, the undersigned recommends that this action be dismissed, 10 | without prejudice, for lack of prosecution and failure to comply with court rules and orders. 11 These findings and recommendations are submitted to the United States District 12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 13 | after being served with these findings and recommendations, any party may file written 14 | objections with the court. Responses to objections shall be filed within 14 days after service of 15 | objections. Failure to file objections within the specified time may waive the right to appeal. See 16 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 17 18 | Dated: January 21, 2020 19 DENNIS M. COTA 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28