United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
September 12, 2019, the court granted plaintiffs motion to
proceed in forma pauperis, dismissed plaintiffs
complaint with leave to amend, and provided plaintiff with 30
days to file a first amended complaint. (ECF No. 4.)
Plaintiff was cautioned that failure to timely comply with
the order would result in a recommendation that this action
be dismissed. (Id.)
ultimately failed to file an amended complaint as ordered.
Nor did plaintiff file a notice of voluntary dismissal. As
such, the court considered whether the action should be
dismissed. However, the court first attempted lesser
sanctions in light of plaintiff s pro se status and the
court's desire to resolve the action on the merits.
Accordingly, on October 21, 2019, the court ordered
plaintiff, within 14 days, to: (1) show cause in writing why
the action should not be dismissed with prejudice pursuant to
Federal Rule of Civil Procedure 41(b) based on her failure to
comply with the court's orders and failure to prosecute
the case; and (2) file a first amended complaint in
compliance with the court's September 12, 2019 order.
(ECF No. 5.) Plaintiff was expressly cautioned that failure
to timely comply with the court's order would result in a
recommendation that this action be dismissed with prejudice
pursuant to Federal Rule of Civil Procedure 41(b).
the applicable deadline has now passed, and despite the
court's clear admonitions, plaintiff again entirely
failed to respond to the court's order. Therefore, at
this juncture, the court has little choice but to recommend
dismissal of the action pursuant to Federal Rule of Civil
Procedure 41(b) for failure to comply with court orders and
failure to prosecute the action.
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
See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987) (stating that "[p]ro 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 Pres. 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 plaintiffs 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) (stating that "[f]ailure
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) (explaining that,
"[p]ursuant 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 "[d]istrict courts
have inherent power to control their dockets" and may
impose sanctions that include dismissal).
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).
the first two factors weigh in favor of dismissal, because
this case has already been delayed by plaintiffs failure to
take the steps necessary to move this case forward. The third
factor also slightly favors dismissal because, at a minimum,
defendants have been deprived of an opportunity to be
promptly notified of the lawsuit and prepare their defense.
With the passage of time, witnesses' memories fade and
evidence becomes stale.
the fifth factor, availability of less drastic alternatives,
favors dismissal, because the court has already attempted
less drastic alternatives. More specifically, the court,
cognizant of plaintiff s pro se status, declined to initially
dismiss the case, but instead issued an order to show cause.
(See ECF No. 5.) The court also clearly cautioned
plaintiff regarding the potential consequences of any
continued failure to comply with the court's orders.
(Id.) Additionally, given plaintiffs initial request
to proceed in forma pauperis and her complete
failure to respond to the court's orders, the court is
not convinced that plaintiff could or would pay any monetary
sanctions if they were ordered.
as to the fourth factor, the public policy favoring
disposition of cases on their merits, that factor is
outweighed by the other Ferdik factors. Indeed, it
is plaintiffs own failure to prosecute the case and comply
with court orders that precludes a resolution on the merits.
after carefully evaluating the Ferdik factors, the