Opinion
ED CV 22-589-AB(E)
10-06-2022
MATTHEW CROSS, Plaintiff, v. J. CENDERELLI, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Andre Birotte Jr., United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On August 30, 2021, Plaintiff filed a civil rights complaint in the United States District Court for the Northern District of California. On April 4, 2022, the action was transferred to this Court.
By Order filed June 29, 2022, the Court dismissed the complaint with leave to amend. The Order allowed Plaintiff to file a First Amended Complaint within thirty (30) days of June 29, 2022. The Order cautioned Plaintiff that failure to file a timely First Amended Complaint could result in the dismissal of this action. Plaintiff did not file a First Amended Complaint within the allotted time.
On August 9, 2022, the Magistrate Judge filed a recommendation that the action be dismissed. On September 1, 2022, at Plaintiff's request, the Magistrate Judge withdrew the August 9 recommendation and extended Plaintiff's time to file a First Amended Complaint until September 30, 2022. However, Plaintiff failed to file a First Amended Complaint within the allotted time, as extended.
DISCUSSION
The action should be dismissed without prejudice. The complaint is defective for the reasons stated in the June 29, 2022 Order. Plaintiff twice has failed to file a First Amended Complaint within the allotted time. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); see Fed. R. Civ- P. 41(b)- The Court has considered the factors recited in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir.), cert, denied, 506 U.S- 915 (1992), and has concluded that dismissal without prejudice is appropriate. In particular, any less drastic alternative would not be effective under the circumstances of this case.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.