(PC) Davis v. Jones ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SCOTT DAVIS, No. 2:19-CV-2072-TLN-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SCOTT JONES, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. On August 20, 2020, the Court issued an order determining that service of the 19 complaint is appropriate. That order required Plaintiff to submit to the United States Marshal, 20 within 15 days of the date of service of the order, a completed summons and copies of the 21 complaint, and file a statement with the Court within 20 days that said documents have been 22 submitted. Plaintiff was warned that failure to comply may result in dismissal of this action for 23 lack of prosecution and failure to comply with court rules and orders. See Local Rule 110. More 24 than 20 days have elapsed and Plaintiff has not complied. 25 The Court must weigh five factors before imposing the harsh sanction of dismissal. 26 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 27 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 28 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of wOAOe □□ PRINCI MVOC ot PO VS LOPE ov eS 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 (Oth 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 prosecute this 11 | case as directed, the Court finds that dismissal of this action is appropriate. 12 Based on the foregoing, the undersigned recommends that this action be dismissed, 13 | without prejudice, for lack of prosecution and failure to comply with court rules and orders. 14 These findings and recommendations are submitted to the United States District 15 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 16 | after being served with these findings and recommendations, any party may file written 17 | objections with the court. Responses to objections shall be filed within 14 days after service of 18 | objections. Failure to file objections within the specified time may waive the right to appeal. See 19 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 | Dated: September 17, 2020 Sx