United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF
ACTION, WITH PREJUDICE, FOR FAILURE TO OBEY A COURT ORDER AND
FAILURE TO PROSECUTE (ECF NO. 32) FOURTEEN (14) DAY
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Wade Wolfe (“Plaintiff”) is a former state
prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983.
10, 2019, the Court issued findings and recommendations to
dismiss certain claims and defendants and for this action to
proceed on the cognizable Fourteenth Amendment claim against
Defendant John Doe stated in the second amended complaint.
(ECF No. 30.)
30, 2019, Plaintiff filed his objections to the findings and
recommendations, wherein he requested further leave to amend.
(ECF No. 31.) As Plaintiff wished to include new information,
including identifying Defendant John Doe and adding a related
claim against the second transporting sheriff, the Court
granted Plaintiff's request to file an amended complaint.
was ordered to file a third amended complaint within thirty
(30) days. (ECF No. 32.) Plaintiff was expressly warned that
his failure to file a third amended complaint in compliance
with the Court's order would result in dismissal of this
action for failure to prosecute and failure to obey a court
order. (Id. at 2.) The deadline for Plaintiff to
file his third amended complaint has passed, and he has not
complied with the Court's order or otherwise communicated
with the Court.
Rule 110 provides that “[f]ailure . . . 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.” District
courts have the inherent power to control their dockets and
“[i]n the exercise of that power they may impose
sanctions including, where appropriate, . . .
dismissal.” Thompson v. Housing Auth., 782
F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action,
with prejudice, 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 requiring amendment of complaint);
Malone v. U.S. Postal Serv., 833 F.2d 128, 130-33
(9th Cir. 1987) (dismissal for failure to comply with court
determining whether to dismiss an action, the Court must
consider several factors: (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. Henderson v. Duncan, 779 F.2d
1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d
1439, 1440 (9th Cir. 1988).
the action has been pending since April 2018, and
Plaintiff's third amended complaint is overdue. The Court
cannot hold this case in abeyance awaiting such compliance by
Plaintiff. Thus, the Court finds that both the first and
second factors weigh in favor of dismissal.
third factor, risk of prejudice to defendant, also weighs in
favor of dismissal, since a presumption of injury arises from
the occurrence of unreasonable delay in prosecuting an
action. Anderson v. Air West, 542 F.2d 522, 524 (9th
Cir. 1976). The fourth factor usually weighs against
dismissal because public policy favors disposition on the
merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th
Cir. 2002). However, “this factor lends little support
to a party whose responsibility it is to move a case toward
disposition on the merits but whose conduct impedes progress
in that direction, ” which is the case here. In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d
1217, 1228 (9th Cir. 2006) (citation omitted).
the court's warning to a party that failure to obey the
court's order will result in dismissal satisfies the
“considerations of the alternatives” requirement.
Ferdik, 963 F.2d at 1262; Malone, 833 at
132-33; Henderson, 779 F.2d at 1424. The Court's
May 31, 2019 order granting Plaintiff's request to file
an amended complaint expressly warned Plaintiff that failure
to comply with that order would result in a dismissal of this
action for failure to obey a court order and failure to
prosecute. (ECF No. 32, p. 2.) Thus, Plaintiff had adequate
warning that dismissal could result from his noncompliance.
at this stage in the proceedings there is little available to
the Court which would constitute a satisfactory lesser
sanction while protecting the Court from further unnecessary
expenditure of its scarce resources. Plaintiff is proceeding
in forma pauperis in this action, making monetary
sanctions of little use, and the preclusion of evidence or
witnesses is likely to have no effect given that Plaintiff
has ceased litigating her case.