(PS) Galindo v. Goehrig ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD ANTONIO GALINDO, No. 2:23-cv-2348-DJC-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATION 14 GREGORY P GOEHRIG, et al., 15 Defendants. 16 17 Plaintiff Donald Antonio Galindo is proceeding in this action pro se. This matter was 18 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 19 On October 16, 2023, plaintiff filed a complaint and a motion to proceed in forma pauperis 20 (“IFP”). ECF Nos. 1 and 2. On April 22, 2024, the Court screened the complaint per the 21 screening process required by the IFP statute and dismissed the complaint for failure to comply 22 with Federal Rule of Civil Procedure 8 and failure to state a claim.1 ECF No. 4. The Court’s 23 order provided in relevant part that within 28 days “an amended complaint shall be filed that 24 cures the defects noted in this order and complies with the Federal Rules of Civil Procedure.” 25 ECF No. 4 at 5. Plaintiff did not file an amended complaint. 26 On August 27, 2024, the Court issued an Order to Show Cause directing Plaintiff to show 27 1 The Court did not rule on Plaintiff’s application to proceed IFP at the time, and does not do so 28 now in light of the recommendation of dismissal. Dismissal would render the IFP issue moot. 1 | cause, in writing, within 14 days why the failure to file an amended complaint should not result in 2 || arecommendation that this case be dismissed for failure to prosecute. More than 14 days have 3 || passed, and Plaintiff has not filed a response. 4 In recommending this action be dismissed for failure to prosecute, the court has 5 || considered “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 6 || manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 7 || disposition of cases on their merits; and (5) the availability of less drastic alternatives.” Ferdik v. 8 | Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (citation omitted). Because this case cannot 9 || move forward without Plaintiff's participation, the court finds the factors weigh in favor of 10 | dismissal. Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed, without 11 | prejudice, for lack of prosecution and for failure to comply with the court’s order. See Fed. R. 12 | Civ. P. 41(b); Local Rule 110. 13 These findings and recommendations are submitted to the United States District Judge 14 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 15 | days after being served with these findings and recommendations, Plaintiff may file written 16 | objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 17 | Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 18 | objections within the specified time may waive the right to appeal the District Court’s order. 19 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 20 SO ORDERED. 21 || DATED: September 16, 2024 kimk 23 SEAN C. RIORDAN 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28