United States District Court, C.D. California
January 15, 2015
WILLIAM BIRD, Plaintiff,
(1) SHERIFF JIM McDONNELL, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, 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.
On November 26, 2014, Plaintiff filed a "Memorandum With Leave to Amend... A First Amended Complaint, '" which the Court construed as Plaintiff's First Amended Complaint. By Memorandum and Order filed December 8, 2014, the Court dismissed the First Amended Complaint with leave to amend. The Memorandum and Order allowed Plaintiff to file a Second Amended Complaint within thirty (30) days of the date of the Memorandum and Order. The Memorandum and Order cautioned Plaintiff that failure to file a timely Second Amended Complaint could result in the dismissal of this action. Plaintiff did not file a Second Amended Complaint within the allotted time.
The action should be dismissed without prejudice. The First Amended Complaint is defective for the reasons stated in the Memorandum and Order. Plaintiff has failed to file a Second 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.
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.