(PC) Pacheco v. Diaz ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESUS PACHECO, ) Case No.: 1:19-cv-00774-LJO-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) RECOMMENDING DISMISSAL OF THE ACTION FOR FAILURE TO STATE A 14 RALPH DIAZ, et al., ) COGNIZABLE CLAIM FOR RELIEF AND ) FAILURE TO COMPLY WITH A COURT 15 Defendants. ) ORDER ) 16 ) [ECF No. 9] ) 17 ) 18 Plaintiff Jesus Pacheco is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 On September 4, 2019, the Court screened Plaintiff’s complaint, determined he failed to state a 21 cognizable claim for relief, and granted Plaintiff the opportunity to amend the complaint within thirty 22 days. Over thirty days have passed and Plaintiff has not filed an amended complaint or otherwise 23 responded to the Court’s order. Accordingly, dismissal of the action is appropriate. As a result, there 24 is no pleading on file which sets forth any claims upon which relief may be granted. 25 The Court has the inherent power to control its docket and may, in the exercise of that power, 26 impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles Cnty., 27 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action, the Court must weigh 28 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 1 || (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on the 2 || merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) Prod. Lia 3 || Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted). These facto 4 || guide a court in deciding what to do and are not conditions that must be met in order for a court to tal 5 action. Id. (citation omitted). 6 Based on Plaintiff's failure to comply with or otherwise respond to the Court’s order, the Cou 7 |\ is left with no alternative but to dismiss the action for failure to prosecute. Id. This action can □□□□□□ 8 further without Plaintiff's cooperation and compliance with the order at issue, and the action cann 9 ||simply remain idle on the Court’s docket, unprosecuted. Id. Accordingly, it is HEREB 10 ||} RECOMMENDED this action be DISMISSED, for failure to obey a court order, failure to prosecut 11 || and for failure to state a cognizable claim for relief. 12 This Findings and Recommendation will be submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 14 || after being served with this Findings and Recommendation, Plaintiff may file written objections with 15 □□□ Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 16 || Recommendation.” Plaintiff □□ advised that failure to file objections within the specified time may 17 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 18 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. A (ee 21 lI pated: _ October 10, 2019 OF 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28