United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR
FAILURE TO OBEY A COURT ORDER (DOCS. 34, 36, 37)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Brent Adler, a former state prisoner who is proceeding
pro se and in forma pauperis, filed this
civil rights action pursuant to 42 U.S.C. § 1983 on
November 18, 2013. This action for damages is proceeding
against Defendants Gonzalez, Holland, Steadman, Bryant,
Zanchi, Lundy, and Schuyler for violating Plaintiff's
right to adequate outdoor exercise under the Eighth Amendment
of the United States Constitution while he was incarcerated
at California Correctional Institution in Tehachapi between
2008 and 2011.
March 30, 2016, Defendants filed a motion for summary
judgment. (Doc. 34.) On March 31, 2016, the Second
Informational Order issued informing Plaintiff of the
requirements to oppose a motion for summary judgment and that
he must file an opposition or statement of non-opposition
within twenty-one days. (Doc. 36.)
than a month passed without Plaintiff having filed an
opposition, a statement of non-opposition, or any response to
Defendants' motion for summary judgment or to this
Court's order of March 31, 2016. Accordingly, on May 5,
2016, Plaintiff was ordered to file an opposition or
statement of non-opposition to Defendants' motion for
summary judgment within twenty-one days. (Doc. 37.) More than
a month has now lapsed and Plaintiff has not complied with
the May 5, 2016 order.
Rule 110 provides that "failure of counsel or of a party
to comply with these 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).
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.
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, 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 an
opposition or statement of non-opposition to Defendants'
motion for summary judgment expressly stated in bold that
"Plaintiff is warned that the failure to comply with
this order will result in recommendation that this action be
dismissed, with prejudice, for failure to prosecute and for
failure to obey a court order." (Doc. 37.) Thus,
Plaintiff had adequate warning that dismissal may result from
his noncompliance with the Court's order.
the Court HEREBY RECOMMENDS that this action be dismissed
with prejudice based on Plaintiff's failure to obey the
Court's order of May 5, 2016, (Doc. 37).
Findings and Recommendations will be 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
twenty-one (21) days after being served with these Findings
and Recommendations, the parties may file written objections
with the Court. The document should be captioned
"Objections to Magistrate Judge's Findings and
Recommendations." The parties are advised that failure
to file objections within the specified time may result in
the waiver of rights ...