Opinion
No. CIV S-04-0181-MCE-CMK-P.
October 20, 2005
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983. On April 13, 2005, the court granted plaintiff's application for leave to proceed in forma pauperis and directed plaintiff to submit completed forms within 30 days for service of his complaint without pre-payment of costs by the U.S. Marshal. Plaintiff failed to comply and, on September 22, 2005, the court directed plaintiff to show cause in writing within 20 days why this action should not be dismissed for lack of prosecution and failure to comply with court rules and orders. Plaintiff has not responded to the order to show cause.
The court must weigh five factors before imposing the harsh sanction of dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 833 F.2d at 132-33 n. 1. The sanction of dismissal for lack of prosecution is appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to follow local rules. See Ghazali, 46 F.3d at 53.
Having considered these factors, and in light of plaintiff's failure to comply with court orders or to respond to the court's order to show cause, the court finds that dismissal is appropriate.
Based on the foregoing, the undersigned recommends that this action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." 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).