United States District Court, E.D. California
ERICK D. HENSON, Plaintiff,
CDCR, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO: (1) GRANT
DEFENDANT'S MOTION TO DISMISS (ECF NO. 48); AND (2)
DISMISS ACTION FOR FAILURE TO OBEY COURT ORDER AND FAILURE TO
PROSECUTE FOURTEEN (14) DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 28 U.S.C.
§ 1983. The matter proceeds on Plaintiff's Fourth
Amendment claim against Defendant Dillon.
the Court is Defendant's motion to dismiss. (ECF No. 48.)
Plaintiff filed no opposition and the time for doing so has
passed. The matter is submitted. Local Rule 230(l).
initiated this action on March 28, 2016. (ECF No. 1.) The
Court screened his initial complaint and found that it stated
a cognizable Fourth Amendment claim against Defendant Dillon
but no other cognizable claims. (ECF No. 22.) Plaintiff was
ordered to file an amended complaint or notify the Court of
his willingness to proceed only on cognizable claims.
(Id.) Plaintiff agreed to proceed. (ECF No. 23.)
Accordingly, the remaining claims and defendants were
dismissed. (ECF No. 24.)
Dillon filed his answer on November 23, 2016 (ECF No. 29),
and a discovery and scheduling order issued on November 29,
2016 (ECF No. 33). On February 13, 2017, Defendant filed a
motion to compel discovery, stating that Plaintiff had not
responded to discovery requests. (ECF No. 41.) Plaintiff
filed no opposition. On March 15, 2017, the Court granted in
part the motion to compel, reminded Plaintiff of his
obligation to respond to discovery requests, and ordered
Plaintiff to provide a response within thirty days. (ECF No.
42.) Plaintiff was warned that the failure to comply could
result in sanctions, including terminating sanctions.
April 19, 2017, Defendant filed a motion to dismiss for lack
of prosecution and failure to obey a court order. (ECF No.
48.) Defendant states that Plaintiff has not responded to the
order on Defendant's motion to compel, provided any
discovery responses, or sought an extension of time to do so.
Plaintiff did not respond to the motion.
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 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, default or 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, 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 a 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 a court order); Henderson v.
Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal
for lack of prosecution and failure to comply with local
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.
has disobeyed a Court order requiring him to respond to
Defendant's discovery requests. He has failed to respond
to Defendant's two most recent motions. He has filed
several motions of his own (ECF Nos. 44, 45, 48), two of
which (ECF Nos. 45 and 48) appear to argue matters relevant
to Plaintiff's habeas petition in a separate case.
this procedural history, the Court concludes that the
public's interest in expeditiously resolving this
litigation and the Court's interest in managing its
docket weigh in favor of dismissal. 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 this 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, as for the
availability of lesser sanctions, at this stage in the
proceedings there is little available which would ...