Opinion
1:15-cv-01085-AWI-JLT (PC)
05-10-2016
TAI EDMUND FRED ABREU, Plaintiff, v. CAVINESS, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DISMISS THE ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM AND TO OBEY THE COURT'S ORDERS (Docs. 22, 23) 21-DAY DEADLINE
The Court screened Plaintiff's first amended complaint and found it failed to state a cognizable claim. (Doc. 23) The Court dismissed the complaint but granted Plaintiff 21 days to file a second amended complaint. (Doc. 23.) Plaintiff has not done so or otherwise responded to the Court's order.
The Court has the inherent power to control its docket and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action for failure to comply with an order, the Court must weigh "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted).
Plaintiff is no longer prosecuting this action despite the Court notifying him of the requirement to respond. This action cannot proceed without an operative pleading on file and the Court cannot justify expending limited resources on a matter Plaintiff has no further interest in pursuing. Thus, based upon Plaintiff's failure to comply with the Court's order or to respond in any fashion and his failure to prosecute the action, the Court has no alternative but to recommend the matter be dismissed. Id. Accordingly, the Court RECOMMENDS that this action be DISMISSED pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e) due to Plaintiff's failure to state any claims upon which relief may be granted under section 1983, his failure to comply with Court orders and his failure to prosecute the action.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21 days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED.
Dated: May 10 , 2016
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE