UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 15, 2011
GLEN PAUL DOMINGUEZ,
STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS, DEFENDANT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION RE: DISMISSAL OF ACTION (Doc. 9)
Plaintiff is proceeding pro se in this civil rights action. On November 17, 2010, plaintiff filed the Complaint and instant action against defendant (Doc. 1).
On December 2, 2010, Civil New Case Documents Issued (Doc. 6), and a Mandatory Scheduling Conference was thereby set for February 10, 2011 at 9:00 a.m. in Courtroom No. 7 before the Honorable Sandra M. Snyder, United States Magistrate Judge, which documents were served on plaintiff by U.S. Mail at his address of record.
On December 3, 2010, other court documents that were previously served on plaintiff by U.S. Mail were returned to the Court by the U.S. Postal Service as Undeliverable, Not Deliverable as Addressed, Unable to Forward. Plaintiff was then required to file a Notice of Change of Address with the Court by February 10, 2011, pursuant to Local Rule 183(b), which states:
A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute.
On February 3, 2011, court staff even attempted to obtain a current telephone number for plaintiff by calling general information at 661-555-1212 for the Bakersfield area, to no avail (Doc. 7).
Nevertheless, the Mandatory Scheduling Conference came on regularly for hearing on February 10, 2011 at 9:00 a.m. in Courtroom No. 7 before Judge Snyder, for which plaintiff did not appear or otherwise contact the Court. Additionally, plaintiff has not yet served the case on defendant, nor has he filed a notice of change of address with the Court as required.
On February 11, 2011, the Court issued an Order to Show Cause ("OSC") requiring plaintiff to personally appear in court on February 25, 2011 at 9:30 a.m. in Courtroom No. 7 before Judge Snyder, to show cause why this action should not be dismissed. Plaintiff was also forewarned that failure to comply with the OSC would result in a recommendation to the District Judge that this action be dismissed (Doc. 9). On February 25, 2011, plaintiff once again did not appear or otherwise contact the Court.
Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for 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 "[i]n the exercise of that power they may impose sanctions including, where appropriate, ... dismissal." 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 lack of prosecution and failure to comply with local rules).
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. The third factor, risk of prejudice to defendant, 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, Inc., 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.
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 the 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.
Additionally, the Court requires compliance with the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the Court in the efficient administration of this case, plaintiff is expected to familiarize himself with the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California, and to keep abreast of any amendments thereto. The Court must insist upon compliance with these Rules if it is to efficiently handle its ever increasing caseload. Sanctions, including dismissal, could be imposed for failure to follow the Rules as provided in both the Fed.R.Civ.P. and the Local Rules.
Accordingly, the Court RECOMMENDS that this entire action be DISMISSED, without prejudice, for plaintiff's failure to follow the Court's order(s) and rules and failure to prosecute this action.
These Findings and Recommendation are submitted to the Honorable Lawrence J. O'Neill, United States District Judge, 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 ten (10) days from the date of service of these Findings and Recommendation, plaintiff may file with the court written objections to such proposed Findings and Recommendation. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1). Plaintiff is 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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