United States District Court, E.D. California
AMENDED FINDINGS AND RECOMMENDATIONS RECOMMENDING
DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO STATE A
CLAIM AND FAILURE TO COMPLY WITH COURT ORDER (ECF NO. 4)
OBJECTIONS DUE WITHIN FOURTEEN DAYS
Kayla Dando filed a complaint on June 23, 2017, against the
Commissioner of Social Security. (ECF No. 1.) On June 30,
2017, Plaintiff's complaint was screened and dismissed
for failure to state a claim. (ECF No. 4.) Plaintiff was
ordered to file an amended complaint within thirty days of
the June 30, 2017 order. After the time for filing objections
passed, the Court noticed that the findings and
recommendations did not include the advisement to Plaintiff
regarding filing objections. Accordingly, this amended
findings and recommendations shall issue and Plaintiff shall
be granted a second opportunity to file objections.
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. In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d at 1226. Plaintiff was ordered to file an amended
complaint within thirty days of June 30, 2017. Plaintiff has
been provided with the legal standards that would apply to
her claims and the opportunity to file an amended complaint.
Plaintiff has neither filed an amended complaint nor
otherwise responded to the Court's 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 defendant in this action. In re
Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). The risk
of prejudice to the defendant 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
June 30, 2017 order requiring Plaintiff to file an amended
complaint expressly stated: “If Plaintiff fails to file
an amended complaint in compliance with this order, this
action will be dismissed for failure to state a claim.”
(ECF No. 4 at 7.) 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 and failure to
comply with the June 30, 2017 order.
findings and recommendations is 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
fourteen (14) days of service of this recommendation,
Plaintiff may file written objections to this 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 ...