United States District Court, E.D. California
FINDING AND RECOMMENDATIONS RECOMMENDING DISMISSING
ACTION FOR FAILURE TO STATE A CLAIM AND FAILURE TO COMPLY
WITH COURT ORDER
Curtis Mcafee (“Plaintiff”), proceeding pro se
and in forma pauperis in this action, filed this civil rights
action pursuant to 42 U.S.C. § 1983 on October 12, 2017.
(ECF No. 1.) The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302.
October 17, 2017, Plaintiff's complaint was screened by
the undersigned and an order was filed dismissing the
complaint with leave to amend for failure to state a claim.
(ECF No. 4.) Plaintiff was ordered to file an amended
complaint within thirty days of the October 17, 2017 order.
More than thirty days have passed and Plaintiff has not filed
an amended complaint or otherwise responded to the October
17, 2017 order.
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 within thirty days
of October 17, 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 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 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. 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
October 17, 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 6:19-20.) 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
Plaintiffs failure to state a claim and failure to comply
with a court 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
twenty-one (21) 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).
Plaintiff is advised that failure to file objections within
the specified ...