United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
Daron Oliver, proceeding without counsel, commenced this
action on September 9, 2019. (ECF No. 1.) On October 12,
2016, the court granted plaintiff's amended motion to
proceed in forma pauperis and dismissed his complaint with
leave to amend. (ECF No. 3.) Plaintiff was given 28 days to
file either an amended complaint or a notice of voluntary
dismissal of the action. (Id.) Additionally,
plaintiff was expressly cautioned that failure to file either
an amended complaint or a notice of voluntary dismissal by
the required deadline may result in dismissal of the action
with prejudice pursuant to Federal Rule of Civil Procedure
that deadline has now long passed, plaintiff has failed to
file a first amended complaint or notice of voluntary
dismissal. Therefore, at this juncture, the court finds that
dismissal of the action is appropriate.
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
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 Phenylpropanolamine (PPA) Prods.
Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
the first two Ferdik factors strongly support
dismissal. Plaintiff's failure to comply with the
court's orders and deadlines suggests that plaintiff is
not interested in seriously prosecuting the action and does
not take his obligations to the court and defendants
seriously. Therefore, any further time spent by the court on
this case will consume scarce judicial resources and take
away from other active cases.
third Ferdik factor, prejudice to a defendant, also
slightly favors dismissal. To be sure, defendants have not
yet appeared in the action, but plaintiff's unreasonable
delay in prosecuting this action cannot be said to be without
consequences. With the passage of time, evidence becomes
stale and/or unavailable, making it more difficult to assess
a case and mount a potentially viable defense.
fifth Ferdik factor, which considers the
availability of less drastic measures, also supports
dismissal of this action. The court has ordered plaintiff to
file an amended complaint and he has entirely failed to do
so. At this juncture, the court finds no suitable alternative
to recommending dismissal of the action.
court recognizes the importance of giving due weight to the
fourth Ferdik factor, which addresses the public
policy favoring disposition of cases on the merits. However,
the fourth Ferdik factor is outweighed by the other
Ferdik factors. Indeed, it is plaintiff's own
failure to comply with court orders that precludes a
disposition on the merits.
after carefully evaluating and weighing the Ferdik
factors, the court ...