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Contreras v. Moreno

February 26, 2009

ROCKY MEL CONTRERAS, PLAINTIFF,
v.
ERNIE MORENO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION

Plaintiff Rocky Mel Contreras ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed this civil rights and employment discrimination action on January 14, 2009, naming Ernie Moreno and Albright Electric, Inc., as Defendants.

On January 20, 2009, the Court dismissed Plaintiff's complaint with leave to amend. The Court explained, in detail, the legal standards for Plaintiff's alleged claims and provided instruction for filing an amended complaint. The Court explained the elements of a Title VII action as well as Plaintiff's inability to state a claim under 42 U.S.C. § 1983 against Defendants, who are private individuals/corporations. The Court gave Plaintiff thirty (30) days to amend his complaint and reminded that an amended complaint supercedes the original complaint and must be complete in itself.

On January 26, 2009, Plaintiff filed a document entitled, "Motion to Amend." The Court disregarded the motion and declined to construe the filing as Plaintiff's amended complaint. In its February 2, 2009, order, the Court explained that Plaintiff, who was attempting to add new causes of action, must file an amended complaint clearly labeled as such and written in light of the January 20, 2009, order.

On February 9, 2009, Plaintiff filed a document entitled, "Motion to Amend as Reply to Judge's Order Dated: Feb-02-2009." For the reasons discussed below, the Court recommends that this action be dismissed without leave to amend.

DISCUSSION

A. Failure to Follow Court Order

Local Rule 11-110 provides that "failure of counsel or of a party to comply with these Local Rules or with any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the Court." District courts have the inherent power to control their dockets and "in the exercise of that power, they may impose sanctions including, where appropriate . . . dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to lack of prosecution and failure to comply with local rules).

In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, 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 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

In the instant case, the Court finds that the public's interest in expeditiously resolving this litigation and the court's interest in managing the docket weigh in favor of dismissal, as this case has been pending since January 14, 2009, and Plaintiff has been given multiple opportunities to correct the deficiencies in his complaint. The third factor, 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). The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a court's warning to a party that his failure to obey the court's order will result in dismissal satisfies the "consideration of alternatives" requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court's January 20, 2009, order requiring Plaintiff to file an amended complaint expressly stated: "Failure to do so will result in a recommendation that this action be dismissed." Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance with the court's order.

In this action, Plaintiff has failed to comply with two Court orders- the January 20, 2009, order dismissing the complaint with leave to amend and the February 2, 2009, order explaining why his "Motion to Amend" was insufficient to act as an amended complaint. To date,he has not filed a clearly labeled amended complaintthat complies with the January 20, 2009, screening order. The allegations stated in his most recent filing continue to allege a 42 U.S.C. § 1983 claim against Defendants and again attempts to add new claims. Accordingly, because Plaintiff has been given multiple opportunities to amend and has failed to do so, the Court recommends that the action be dismissed for Plaintiff's failure to follow Court orders.

B. Allegations

Even assuming that Plaintiff meant for his February 9, 2009, filing to act as his amended complaint, he continues to ignore the Court's January 20, 2009, screening order and ...


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