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Case 1:12-cv-01914-AWI-JLT Document 17 Filed 09/19/13 Page 1 of 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA





















RUMALDO BARBOZA,





Plaintiff,

v.

BARRY J. GREEN,



Defendants.





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Case No.: 1:12-cv-01914 – AWI – JLT (PC)

FINDINGS AND RECOMMENDATIONS OF
DISMISSAL FOR FAILURE TO PROSECUTE

(Doc. 16).

Plaintiff Rumaldo Barboza (“Plaintiff”) is a state prisoner proceeding pro se and in forma

pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On July 30, 2013, the Court dismissed

the complaint in this matter. (Doc. 15). The Court granted Plaintiff 21 days from the date of service of

the order to comply with the July 30, 2013 order. Id. On August 28, 2013, the Court ordered Plaintiff

to show cause as to why the matter should not be dismissed for his failure to file a first amended

complaint and granted him 14 days to respond to the order to show cause. (Doc. 16). More than 14

days have passed, and Plaintiff has again failed to comply with the Court’s order.

In determining whether to dismiss an action for lack of prosecution, the court must consider

several factors: (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. Henderson v. Duncan, 779

F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988).



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Case 1:12-cv-01914-AWI-JLT Document 17 Filed 09/19/13 Page 2 of 2





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The public’s interest in expeditiously resolving this litigation and the Court’s interest in

managing its docket weigh in favor of dismissal, as this case has been pending since November 26,

2012. (Doc. 1). This case cannot be held abeyance indefinitely based on Plaintiff’s failure to file his

first amended complaint. Moreover, the Court explicitly advised Plaintiff that “[s]hould Plaintiff fail to

file his first amended complaint, the Court will issue findings and recommendations that this matter be

dismissed.” (Doc. 16 at 2).

The risk of prejudice to Defendants also weighs in favor of dismissal, since a presumption of

injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air

West, 542 F.2d 522, 524 (9th Cir. 1976). Similarly, the factors in favor of dismissal discussed above

greatly outweigh the public policy favoring disposition of cases on their merits. Finally, no lesser

sanction is feasible given the Court’s inability to communicate with Plaintiff based on Plaintiff’s

continuous disregard for the Court’s mandates.

FINDINGS AND RECOMMENDATIONS

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Accordingly, and for the aforementioned reasons, the Court RECOMMENDS DISMISSAL of

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the matter for failure to prosecute.

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)(1)(B) and Rule 304 of the Local Rules of

Practice for the United States District Court, Eastern District of California. Within 14 days after

being served with these findings and recommendations, Plaintiff may file written objections with

the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” Plaintiff is advised 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).

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IT IS SO ORDERED.

Dated: September 19, 2013





/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE



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