(PC) Foust v. California Medical Facility ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:21-CV-0540-DJC-DMC-P 12 Plaintiff, ORDER 13 v. and 14 CALIFORNIA MEDICAL FACILITY, FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. On October 6, 2023, the Court directed Plaintiff to file an amended complaint 19 within 30 days. Plaintiff was warned that failure to file an amended complaint may result in 20 dismissal of this action for lack of prosecution and failure to comply with court rules and orders. 21 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 Plaintiffs 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 orders and recommends as follows: 10 1. It is ORDERED that Plaintiffs renewed motion for the appointment of 11 || counsel, ECF No. 82, is denied without prejudice to renewal should these findings and 12 || recommendations not be adopted. 13 2. It is RECOMMENDED that this action be dismissed, without prejudice, 14 | for lack of prosecution and failure to comply with court rules and orders. 15 These findings and recommendations are submitted to the United States District 16 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 17 | after being served with these findings and recommendations, any party may file written 18 || objections with the court. Responses to objections shall be filed within 14 days after service of 19 || objections. Failure to file objections within the specified time may waive the right to appeal. See 20 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 22 || Dated: December 4, 2023 = IS Co 23 DENNIS M. COTA 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28