Opinion
Case No. 2:08-cv-02873-MSB.
July 9, 2010
ORDER
Plaintiff Kyle Avery, who is currently confined in the California State Prison, Sacramento, is proceeding pro se and in forma pauperis. He seeks relief under 42 U.S.C. § 1983.
In its April 9, 2010 order, the Court screened Avery's pro se civil rights complaint pursuant to 28 U.S.C. § 1915A and determined that the allegations in his complaint were sufficient for screening purposes to state a claim against Defendants Adams, Menon, and Nangalama for deliberate indifference to serious medical needs under the Eighth Amendment. (Dkt. #9 at 6-9). The Court dismissed Avery's remaining claims and ordered him to complete and return the Notice of Submission of Documents no later than May 9, 2010. ( Id. at 10). The Court warned Avery that "[i]f [he] fail[ed] to return the Notice of Submission of Documents and the required documents [by May 9], . . . [it would] enter a judgment of dismissal of th[e] action without prejudice. See Fed.R.Civ.P. 41(b)." ( Id. at 11).
On April 21, 2010, Avery filed a motion requesting that the Court vacate its April 9, 2010 order directing him to return the Notice of Submission of Documents and allow him 60 days to amend his complaint. (Dkt. #12). The Court granted the motion on June 7, 2010, and ordered Avery to submit his amended complaint and return the Notice of Submission of Documents no later than June 21, 2010. (Dkt. #13). The Court warned Avery that "[i]f [he] fail[ed] to return the Notice of Submission of Documents and the required documents by June 21, 2010 . . . [the Court would,] without further notice, enter a judgment of dismissal of th[e] action without prejudice. See Fed.R.Civ.P. 41(b)." ( Id. at 3). In reviewing the docket, the Court notes that Avery has not submitted his amended complaint or returned the Notice of Submission of Documents, or otherwise responded to the Court's June 7, 2010 order.
The Court has considered the dismissal factors delineated in Henderson v. Duncan, 770 F.2d 1421 (9th Cir. 1986) (failure to prosecute) and Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (failure to comply with court orders), and concludes that they weigh in favor dismissing this action. In particular, the public's interest in expeditious resolution of litigation and the Court's specific interests in managing its docket strongly support dismissal of this action, as the Court twice ordered Avery to return the Notice of Submission of Documents so this litigation could proceed and informed him that the Court would dismiss this action if he did not comply with the Court's orders. Thus, because Avery has failed to prosecute this action and comply with the Court's orders, the Court will dismiss the action pursuant to Federal Rule of Civil Procedure 41(b) and direct the Clerk of the Court to close the case.
Accordingly,
IT IS HEREBY ORDERED that this case is dismissed without prejudice for failure to prosecute and failure to comply with the Court's June 7, 2010 order pursuant to FED. R. CIV. P. 41(b).
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.