(PS) Smith v. Bodden ( 2022 )

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-JAM-DMC 12 Plaintiffs, 13 v. FINDINGS AND RECOMMENDATIONS 14 JIM BODDEN et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. On February 7, 2022, 18 the Court directed Plaintiffs to show cause in writing within 30 days why this action should not 19 be dismissed for failure to effect timely service of process. Plaintiffs were warned that failure to 20 comply may result in dismissal of this action for lack of prosecution and failure to comply with 21 court rules and orders. See Local Rule 110. More than 30 days have elapsed and Plaintiffs have 22 not complied. 23 The Court must weigh five factors before imposing the harsh sanction of dismissal. 24 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 25 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 26 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 27 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 28 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 1 | 53 (th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 2 | sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 3 | 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 4 | there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 5 | 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 6 | order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 7 | 1992). 8 Having considered these factors, and in light of Plaintiffs’ failure to prosecute this 9 | case as directed, the Court finds that dismissal of this action is appropriate. 10 Based on the foregoing, the undersigned recommends that this action be dismissed, 11 | without prejudice, for lack of prosecution and failure to comply with court rules and orders. 12 These findings and recommendations are submitted to the United States District 13 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 14 | after being served with these findings and recommendations, any party may file written 15 | objections with the court. Responses to objections shall be filed within 14 days after service of 16 | objections. Failure to file objections within the specified time may waive the right to appeal. See 17 | Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 | Dated: April 15, 2022 20 DENNIS M. COTA 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28