United States District Court, E.D. California
MICHAEL J. SULLIVAN, Plaintiff,
CHEN, et al. Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF CASE FOR FAILURE TO PROSECUTE
Michael J. Sullivan is a prisoner proceeding pro se
and in forma pauperis with this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff initially filed
his complaint on June 28, 2012. (ECF No. 1.) The case is
currently proceeding on Plaintiff's second amended
complaint. On January 3, 2017, the Court set an initial
scheduling conference in this case for May 1, 2017. (ECF No.
78.) The parties were informed that appearances at the
scheduling conference were mandatory and the parties were
instructed to file a scheduling conference statement at least
one week before the scheduling conference. The parties were
also directed to serve initial disclosures within 30 days.
did not appear at the initial scheduling conference.
Defendants noted that Plaintiff also had yet to serve initial
disclosures and had not responded to any discovery requests.
Plaintiff did not file a scheduling conference statement. The
Court issued an Order to Show Cause why sanctions should not
issue and set a hearing for May 15, 2017. (ECF No. 87.)
Plaintiff was warned that a failure to respond to the Order
to Show Cause could lead to dismissal of his
did not appear at the hearing on the Order to Show Cause on
May 15, 2017, nor did he otherwise respond to the Order to
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 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.” Thompson v. Housing Auth.,
782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an
action 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);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for lack of prosecution and failure to
comply with local rules).
determine whether to dismiss this action for failure to
comply with the directives set forth in its order, “the
Court must weigh the following 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 defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.” Pagtalunan
v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
public's interest in expeditious resolution of litigation
always favors dismissal, ” id., quoting Yourish v.
California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999),
and here, the action has been pending since June 28, 2012.
Plaintiff has been instructed to serve initial disclosures
and appear to schedule his case, but has not done so. This
reflects Plaintiff's lack of interest in prosecuting this
case. The Court cannot continue to expend resources on a case
that Plaintiff has no interest in litigating. Thus, both the
first and second factors weigh in favor of dismissal.
to the risk of prejudice, “pendency of a lawsuit is not
sufficiently prejudicial in and of itself to warrant
dismissal.” Id., citing Yourish, 191
F.3d at 991. However, “delay inherently increases the
risk that witnesses' memories will fade and evidence will
become stale, ” id., and it is Plaintiff's
failure to participate in this litigation that is causing the
delay. Therefore, the third factor weighs in favor of
the availability of lesser sanctions, at this stage in the
proceedings there is little available to the Court that would
constitute a satisfactory lesser sanction while protecting
the Court from further unnecessary expenditure of its scarce
resources. Monetary sanctions are of little use because of
Plaintiff's in forma pauperis status, and given
the early stage of these proceedings, the preclusion of
evidence or witnesses is not available. Thus, they would not
induce compliance. Plaintiff has also previously been warned
that a failure to obey court orders will result in dismissal,
satisfying the requirement that the Court consider
alternatives. Ferdik, 963 F.2d at 1262.
public policy favors disposition on the merits, this factor
will always weigh against dismissal. Id. at 643.
This factor alone, however, is not dispositive by itself.
was warned multiple times that a failure to appear or to
prosecute this action would result in the dismissal of his
action. (ECF Nos. 73, 87.) Accordingly, this case should be
on the foregoing, the Court RECOMMENDS that:
1. This action be DISMISSED for Plaintiffs failure to comply
with the Court's orders issued on January 3, 2017 and May
2, 2017 and for Plaintiffs failure to prosecute this action;
2. The Clerk of Court be DIRECTED to close this case.
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)(1). Within
thirty (30) days after being served with
these Findings and Recommendations, Plaintiff may file
written objections with the Court. The document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendations.” Plaintiff is advised
that failure to file objections within the specified time may
result in the waiver of the “right to challenge the