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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

EDWARD T. KENNEDY, No. CIV S-04-1591-DFL-CMK

Plaintiff, 

vs. FINDINGS AND RECOMMENDATIONS

PEOPLE OF THE STATE OF

CALIFORNIA,

Defendant.

 /

Plaintiff, who is proceeding pro se, filed this action on August 6, 2004. On that

same date, the court issued an order requiring plaintiff to serve the defendant in a timely manner

pursuant to Federal Rule of Civil Procedure 4(m). More than 120 days have passed since the

complaint was filed and it appears that the defendant has not been served. On September 22,

2005, the court directed plaintiff to show cause within 20 days why this action should not be

dismissed for lack of prosecution and failure to comply with rules and court order. Plaintiff has

not responded to the order to show cause.

/ / /

/ / /

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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 serve

defendant and to respond to the court’s order to show cause, the court find 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).

DATED: October 20, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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