(PS) Smith v. Bodden ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS PAUL SMITH, JR., et al., No. 2:20-CV-2300-DAD-DMC 12 Plaintiffs, 13 v. FINDINGS AND RECOMMENDATIONS 14 JIM BODDEN et al., 15 Defendants. 16 17 Plaintiffs, who are proceeding pro se, bring this civil action. On November 15, 18 2022, the Court issued an order determining that service of the complaint is appropriate. That 19 order required Plaintiffs to submit to the United States Marshal, within 45 days of the date of 20 service of the order, a completed summons and copies of the complaint, and file a statement with 21 the Court within 60 days that said documents have been submitted. Plaintiffs were warned that 22 failure to comply may result in dismissal of this action for lack of prosecution and failure to 23 comply with court rules and orders. See Local Rule 110. More than 60 days have elapsed and 24 Plaintiffs have 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 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 (9th 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)(I). 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 | Dated: February 15, 2023 Co 22 DENNIS M. COTA 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28