United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL
THIS ACTION FOR A FAILURE TO PROSECUTE AND FOR FAILURE TO
FOLLOW A COURT ORDER OBJECTIONS DUE BY JULY 22, 2016
proceeding pro se and in forma pauperis,
filed several complaints alleging a civil rights action.
(Docs. 1, 14, and 17). On January 1, 2015, the Court
dismissed Plaintiff’s pleadings with leave to amend and
ordered that Plaintiff file an amended complaint no later
than February 26, 2016. (Doc. 20, pg. 9). Plaintiff did not
file an amended complaint as ordered.
March 31, 2016, the Court issued an Order to Show Cause Why
the Case Should Not be Dismissed for Failure to Follow this
Court’s order. (Doc.22). Plaintiff was ordered to file
a written response to the Order to Show Cause, or in the
alternative, file an amended complaint no later than April
29, 2016. (Doc. 22, pg. 1). Plaintiff was advised that
failure to timely respond to the Order to Show Cause would
result in dismissal of this action. (Doc. 22, lines 26-28).
The time to file a response to the order to show cause has
elapsed and the Plaintiff failed to respond to file any
110 of this Court’s Local Rules provides that the
“failure of counsel or of a party to comply …
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.” This Court has the
inherent power to manage its docket. Thompson v. Housing
Auth., 782 F.2d 829, 831 (9th Cir. 1986). Further, 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., Pagtalunan v. Galaza, 291 F.3d 639 (9th
Cir. 2002) (dismissal upheld for failing to timely file
objections to a Report and Recommendation); 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);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for 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. Pagtalunan, 291 F.3d at 642;
Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at
1260-61; Thompson, 782 F.2d at 831.
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
because there is no indication that the Plaintiff intends to
prosecute this action. Although he filed numerous documents
in the beginning phases of this case, he failed to file the
required pleading on two different occasions as ordered. The
Court cannot continue to expend its scarce resources
assisting a litigant who has not filed an operative pleading.
third factor, risk of prejudice to defendants, also weighs in
favor of dismissal because a presumption of injury arises
from any unreasonable delay in prosecuting an action.
Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.
1976). Pendency of a lawsuit is not sufficiently prejudicial
in and of itself to warrant dismissal. Pagtalunan,
291 F.3d at 642 (quoting at Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). However,
“unnecessary delay inherently increases the risk that
witnesses’ memories will fade and evidence will become
stale.” Pagtalunan, 291 F.3d at 642 citing
Sibron v. New York, 392 U.S. 40 (1968). Here, the
delay is unnecessary and is caused by Plaintiff’s
failure to file an amended complaint.
fourth factor, public policy favoring disposition of cases on
their merits, is greatly outweighed by the factors in favor
of dismissal. Finally, a court’s warning to a party
that his or her failure to obey the court’s order will
result in dismissal satisfies the “consideration of
less drastic alternatives” requirement.
Ferdik, 963 F.2d at 1262; Malone, 833 at
132-33; Henderson, 779 F.2d at 1424. In this case,
the Court’s order requiring that Plaintiff file an
amended complaint or respond to the Order to Show Cause was
clear that dismissal would result from non-compliance with
the Court's order. (Doc. 22. Lines 26-28).
on the above, IT IS HEREBY RECOMMENDED that this action be
DISMISSED without prejudice for Plaintiff’s failure to
comply with a court order and for his failure to prosecute
this action. It is further recommended that if these Findings
and Recommendations are adopted, the Clerk of the Court close
Findings and Recommendations are submitted to the district
judge assigned to this action, pursuant to 28 U.S.C. §
636(b)(1)(B). No later than July 22, 2016, Plaintiff 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."
The district judge will review the magistrate judge's
Findings and Recommendations pursuant to 28 U.S.C. §
636(b)(1)(C). Plaintiff is advised that failure to file
objections within the specified time may waive the right to
appeal the district judge's order. Wilkerson v.
Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Martinez
v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
the Clerk of the Court is directed to serve these Findings
and Recommendations on Plaintiff at ...