Avery v. Davita Diallysis Center ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ROBERT SHORTY AVERY, Case No. 16-cv-07061-JD 7 Plaintiff, ORDER OF DISMISSAL g v. 9 DAVITA DIALYSIS CENTER et al., 10 Defendants. 11 12 In a prior order, the Court dismissed pro se plaintiff Robert Avery’s complaint with leave 13 || to amend because it did not state a plausible federal claim. Dkt. No. 23. The deadline to file an 14 || amended complaint was October 20, 2017. Id. No amended complaint was filed, and nothing has 3 15 || happened in this case in over two years. On January 24, 2020, the Court issued an order for Avery a 16 || to show cause why the case should not be dismissed under Federal Rule of Civil Procedure 41(b) 3 17 || for failure to prosecute. Dkt. No. 24. The deadline for a response was February 7, 2020. Id. No 18 || response has been filed. 19 Avery appears to have abandoned the case. While the Court favors the disposition of cases 20 on the merits, it has considered the five factors set forth in Malone v. United States Postal Service, 21 833 F.2d 128, 130 (9th Cir. 1987), and finds that dismissal here is warranted by the circumstances. 22 || The case is dismissed without prejudice under Rule 41(b), and the file will be closed. 23 IT IS SO ORDERED. 24 || Dated: February 18, 2020 25 26 JAMES JPONATO 27 United Jtates District Judge 28