(PS) Whittman v. Caraway ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN R. WHITMAN, No. 2:20-CV-0243-TLN-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CORIE J. CARAWAY, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. On May 21, 2020, the 18 Court directed plaintiff to file a scheduling conference statement by June 10, 2020. To date, 19 plaintiff has not complied. A review of the docket also reflects that, to date, plaintiff has failed to 20 effect service of process on any defendant. 21 The Court must weigh five factors before imposing the harsh sanction of dismissal. 22 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 23 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 24 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 25 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 26 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 27 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 28 sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, wOASe 2 CUVEE MAIN OMIEUICT 1 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 2 | there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 3 | 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 4 | order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 5 | 1992). 6 Having considered these factors, and in light of plaintiffs failure to file a 7 | scheduling conference statement or effect service of process, the Court finds that dismissal of this 8 | 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)(1). 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: June 12, 2020 19 DENNIS M. COTA 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28