United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING
ACTION OBJECTIONS DUE WITHIN THIRTY DAYS
filed a complaint in this action on October 26, 2016. (ECF
No. 16.) On December 20, 2016, the complaint was dismissed
with leave to amend for failure to state a claim. (ECF No.
2.) Plaintiff was provided with thirty days in which to file
an amended complaint. Rather than filing an amended
complaint, Plaintiff filed objections to the screening order
on January 20, 2017. (ECF No. 3.) On April 28, 2017, the
district judge issued an order denying Plaintiff's
request for reconsideration, and Plaintiff was ordered to
file an amended complaint within thirty days. (ECF No. 4.) On
May 30, 2017, Plaintiff was granted an extension of time to
July 5, 2017 to file his amended complaint. (ECF No. 6.) The
deadline for Plaintiff to file his amended complaint has
passed; and Plaintiff has not filed an amended complaint or
otherwise responded to the May 30, 2017 order.
of the Federal Rules of Civil Procedure allows a court to
involuntarily dismiss an action if the plaintiff fails to
prosecute the action or fails to comply with a court order.
Fed.R.Civ.P. 41(b). 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 . . . within
the inherent power of the Court.” The Court has the
inherent power to control its docket and may, in the exercise
of that power, impose sanctions where appropriate, including
dismissal of the action. Bautista v. Los Angeles
County, 216 F.3d 837, 841 (9th Cir. 2000).
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 to file an amended 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. United States
Postal Serv., 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 lack of prosecution and failure to
comply with local rules).
determining whether to dismiss an action for failure to
comply with a pretrial order, the Court must weigh “(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 sanctions.” In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and
citations omitted). These factors guide a court in deciding
what to do, and are not conditions that must be met in order
for a court to take action. Id. (citation omitted).
instance, the public's interest in expeditious resolution
of the litigation and the Court's need to manage its
docket weigh in favor of dismissal. Id. Plaintiff
was ordered to file an amended complaint by July 5, 2017.
Plaintiff has been provided with the legal standards that
would apply to his claims and the opportunity to file an
amended complaint. Plaintiff has neither filed an amended
complaint nor otherwise responded to the May 30, 2017 order.
Plaintiff's failure to comply with the orders of the
Court hinders the Court's ability to move this action
towards disposition, and indicates that Plaintiff does not
intend to diligently litigate this action.
it appears that Plaintiff does not intend to litigate this
action diligently there arises a rebuttable presumption of
prejudice to the defendants in this action. In re
Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). This risk
of prejudice may be rebutted if Plaintiff offers an excuse
for the delay. In re Eisen, 31 F.3d at 1453.
However, the Court is aware of no reason for Plaintiff's
failure to file an amended complaint and the risk of
prejudice to the defendants also weighs in favor of
public policy in favor of deciding cases on their merits is
greatly outweighed by the factors in favor of dismissal. It
is Plaintiff's responsibility to move this action
forward. This action can proceed no further without
Plaintiff's cooperation and compliance with the order at
issue, and the action cannot simply remain idle on the
Court's docket, unprosecuted. In this instance, the
fourth factor does not outweigh Plaintiff's failure to
comply with the Court's orders.
a court's warning to a party that their failure to obey
the court's order will result in dismissal satisfies the
“consideration of alternatives” requirement.
Ferdik, 963 F.2d at 1262; Malone, 833 at
132-33; Henderson, 779 F.2d at 1424. The Court's
December 20, 2016 and April 27, 2017 orders both informed
Plaintiff that the failure to file an amended complaint would
result in dismissal of this action. (ECF No. 2 at 12:21-22;
ECF No. 4 at 4:15-17.) Thus, Plaintiff had adequate warning
that dismissal would result from his noncompliance with the
Court's order and his failure to state a claim.
it is HEREBY RECOMMENDED that this action be DISMISSED for
Plaintiff's failure to state a claim.
findings and recommendations are submitted to the district
judge assigned to this action, pursuant to 28 U.S.C. §
636(b)(1)(B) and this Court's Local Rule 304. Within
thirty (30) days of service of this recommendation, Plaintiff
may file written objections to these findings and
recommendations with the Court. 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).
The parties are advised that failure to file objections
within the specified ...