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Bellotti v. Williams

United States District Court, E.D. California

February 26, 2018

GARY BELLOTTI, Plaintiff,
v.
RICHARD WILLIAMS, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Gary Bellotti who proceeds without counsel, commenced this action on September 25, 2017 and requested leave to proceed in forma pauperis. (ECF Nos. 1, 2.) On October 20, 2017, the court granted plaintiff's motion to proceed in forma pauperis, and ordered plaintiff to supply the U.S. Marshal, within 30 days, with all information needed to effectuate service of process, and within 10 days thereafter, to file a statement with the court that such documents have been submitted. (ECF No. 8.) Plaintiff then requested a 60-day extension of time to submit the necessary documents to the U.S. Marshal. (ECF No. 11.) On October 27, 2017, the court granted plaintiff's request an for extension and directed plaintiff to supply the U.S. Marshal, by January 18, 2018, with the necessary information, and to notify the court, by January 28, 2018, that all documents had been submitted. (ECF No. 12.)

         Plaintiff failed to comply with the court's order. As a result, the court considered whether the action should be dismissed. Nevertheless, in light of plaintiff's pro se status and the court's general preference to resolve actions on their merits, the court first attempted lesser measures in the form of an order to show cause. On February 2, 2018, the court ordered:

2. No later than February 19, 2018, plaintiff shall show cause in writing why this action should not be dismissed based on plaintiff's failure to comply with the court's October 27, 2017 order (ECF No. 12).
3. No later than February 19, 2018, plaintiff shall supply the U.S. Marshal with all information needed by the U.S. Marshal to effectuate service of process, and shall file a statement with the court that such documents have been submitted.
4. Failure to timely respond to the order to show cause, and to timely supply the U.S. Marshal with the necessary information, may result in dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b).

(ECF No. 13 at 2 (emphasis in the original).)

         To date, plaintiff has not shown cause in writing why this action should not be dismissed, and there is no indication that plaintiff has supplied the U.S. Marshal with the information needed to effectuate service of process. Plaintiff has again failed to comply with the court's order, despite the court's explicit warning that failure to timely comply may result in a recommendation that the action be dismissed. Therefore, the court recommends dismissal at this juncture.

         Eastern 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 default).

         A court 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 ...


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