UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 8, 2009
JOSEPH PUCKETT, PLAINTIFF,
CHIEF OF POLICE DYER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DISMISS THE ACTION FOR PLAINTIFF'S FAILURE TO COMPLY WITH AN ORDER OF THE COURT AND TO PROSECUTE THE ACTION
(DOCS. 9, 10)
Plaintiff is proceeding pro se and in forma pauperis with an action for damages and other relief concerning alleged civil rights violations. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.
Plaintiff filed his first amended complaint (FAC) on January 27, 2009. On May 1, 2009, the Magistrate Judge issued an order directing Plaintiff to file a statement of intention to proceed on the FAC or, in the alternative, to file a second amended complaint (SAC) within thirty days of service of the order. After thirty days had passed but no SAC or alternative statement of intention had been filed, the Court issued on June 10, 2009, an order to Plaintiff to show cause within twenty days why the action should not be dismissed for Plaintiff's failure to follow an order of the Court. The order was served by mail on Plaintiff on June 11, 2009.
To date, more than twenty days have passed, but Plaintiff has not filed the SAC, filed a statement of intention to proceed on the FAC, or timely sought an extension of time in which either to file the amended complaint or file a statement of intention to proceed on the FAC.
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 this 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 the case has been pending since September 2008. 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 order requiring Plaintiff to file a SAC or, alternatively, a statement of intention to proceed on the FAC expressly stated: "Plaintiff IS INFORMED that the failure to respond to this order will result in a recommendation that the action be dismissed." (Doc. 10, p. 3.) Thus, Plaintiff received adequate warning that dismissal would result from his noncompliance with the Court's order.
Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, without prejudice, pursuant to Local Rule 11-110 for Plaintiff's failure to comply with the Court's order and for failure to prosecute the action.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that 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).
IT IS SO ORDERED.
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