United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Paul Blank, proceeding without counsel, commenced this action
on February 21, 2017. (ECF No. 1.) On April 19, 2017, this court
granted plaintiff's motion to proceed in forma
pauperis. (ECF No. 4.) In the same order, while noting
that “plaintiffs' 4-page complaint is rambling and
largely unintelligible” and that “the court is
highly skeptical that Paul Blank can allege facts sufficient
to support a viable civil rights claim under § 1983
and/or a claim under the ADA against any of the named
defendants, in an abundance of caution” this court
granted plaintiff leave to amend. (Id.) Paul Blank
was ordered to file either (a) a first amended complaint in
accordance with the requirements of the order or (b) a notice
of voluntary dismissal of the action without prejudice,
within 28 days of April 19, 2017. (Id.) Paul Blank
has failed to comply with the order.
District 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 authorized by statute or Rule or
within the inherent power of the Court.” Moreover,
Eastern District Local Rule 183(a) provides, in part:
Any individual representing himself or herself without an
attorney is bound by the Federal Rules of Civil or Criminal
Procedure, these Rules, and all other applicable law. All
obligations placed on “counsel” by these Rules
apply to individuals appearing in propria persona. Failure to
comply therewith may be ground for dismissal, judgment by
default, or any other sanction appropriate under these Rules.
See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987) (“Pro se litigants must follow the same rules of
procedure that govern other litigants”) (overruled on
other grounds). A district court may impose sanctions,
including involuntary dismissal of a plaintiff's case
pursuant to Federal Rule of Civil Procedure 41(b), where that
plaintiff fails to prosecute his or her case or fails to
comply with the court's orders, the Federal Rules of
Civil Procedure, or the court's local rules. See
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)
(recognizing that a court “may act sua sponte to
dismiss a suit for failure to prosecute”); Hells
Canyon Preservation Council v. U.S. Forest Serv., 403
F.3d 683, 689 (9th Cir. 2005) (stating that courts may
dismiss an action pursuant to Federal Rule of Civil Procedure
41(b) sua sponte for a plaintiff's failure to prosecute
or comply with the rules of civil procedure or the
court's orders); Ghazali v. Moran, 46 F.3d 52,
53 (9th Cir. 1995) (per curiam) (“Failure to follow a
district court's local rules is a proper ground for
dismissal”); Ferdik v. Bonzelet, 963 F.2d
1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule
of Civil Procedure 41(b), the district court may dismiss an
action for failure to comply with any order of the
court”); Thompson v. Housing Auth. of City of
L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam)
(stating that district courts have inherent power to control
their dockets and may impose sanctions including dismissal or
must weigh five factors in determining whether to dismiss a
case for failure to prosecute, failure to comply with a court
order, or failure to comply with a district court's local
rules. See, e.g., Ferdik, 963 F.2d at 1260.
Specifically, the court must consider:
(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.
Id. at 1260-61; accord Pagtalunan v.
Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002);
Ghazali, 46 F.3d at 53. The Ninth Circuit Court of
Appeals has stated that “[t]hese factors are not a
series of conditions precedent before the judge can do
anything, but a way for a district judge to think about what
to do.” In re Phenylpropanolamine (PPA) Prods.
Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
involuntary dismissal can be a harsh remedy, on balance the
five relevant factors weigh in favor of dismissal here. The
first two Ferdik factors strongly support dismissal,
given that plaintiff's failure to comply with the
court's orders and failure to prosecute his case have
unreasonably delayed the progress of this litigation. The
third Ferdik factor also favors dismissal. Although
the defendants have not yet appeared in the case, they have
been named in a civil action, and plaintiff's failure to
prosecute the case has hampered defendants' ability to
move this case forward towards resolution.
the fifth Ferdik factor, which considers the
availability of less drastic measures, also supports
dismissal. As noted above, the court has already attempted
less drastic sanctions-granting the plaintiff leave to
amend-prior to recommending dismissal. However, plaintiff
failed to comply with the court's order.
the court finds that the fourth Ferdik factor, which
addresses the public policy favoring disposition of cases on
the merits, does not materially counsel against dismissal. If
anything, a disposition on the merits has been hindered by
plaintiff's own failure to comply with the court's
order and prosecute his case. In any event, the court finds
that the fourth Ferdik factor is outweighed by the
other Ferdik factors.
dismissal is appropriate.
IT IS HEREBY RECOMMENDED that:
1. The action be dismissed with prejudice pursuant to Federal
Rule of ...