United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state inmate proceeding pro se and in forma pauperis in
this federal civil rights action filed pursuant to 42 U.S.C.
§ 1983. On September 26, 2019, the court directed
plaintiff to file a pretrial statement on or before December
11, 2019. ECF No. 58. Plaintiff was warned that failure to
file a pretrial statement could result in the imposition of
sanctions, including dismissal of this action. Id.
at 4. The deadline has now passed and plaintiff has yet to
file his pretrial statement.
courts have the inherent power to control their dockets. In
the exercise of that power they may impose sanctions
including, where appropriate, default or dismissal.”
Thompson v. Housing Auth., 782 F.2d 829, 831 (9th
Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S.
626 (1961)). A court 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.
Fed.R.Civ.P. 16(f); Fed.R.Civ.P. 41(b); L.R. 110; Ghazali
v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (citing
United States v. Warren, 601 F.2d 471, 474
(9th Cir. 1979)) (dismissal for noncompliance with local
rule); Malone v. United States Postal Serv., 833
F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to
comply with court order).
In determining whether to dismiss a claim for failure to
prosecute or failure to comply with a court order, the court
must weigh the following 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 defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.
2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992)).
court finds that the public's interest in expeditiously
resolving this litigation and the court's interest in
managing the docket weigh in favor of dismissal. This action
has been pending since July 2016, and there is no evidence
that plaintiff has made any attempt to file a pretrial
statement. Plaintiff's failure to file a timely pretrial
statement despite being warned that his case may be dismissed
has already resulted in defendant's request to modify the
deadlines in this case, thereby impeding resolution of this
case. See ECF No. 61.
third factor, risk of prejudice to defendant, also weighs in
favor of dismissal. “To prove prejudice, a defendant
must establish that plaintiff's actions impaired
defendant's ability to proceed to trial or threatened to
interfere with the rightful decision of the case.”
Pagtalunan, 291 F.3d at 642 (citing Malone,
833 F.2d at 131). The risk of prejudice is considered in
relation to plaintiff's reason for defaulting.
Id. (citing Yourish v. Cal. Amplifier, 191
F.3d 983, 991 (9th Cir. 1999)). Plaintiff has provided no
explanation for his failure to timely comply with the
court's order and his failure impairs the defendants'
ability to file a responsive pretrial statement and to
prepare for and proceed to trial. See ECF No. 61.
fourth factor-public policy favoring disposition of cases on
their merits-is greatly outweighed by the other factors in
favor of dismissal discussed herein.
at this late stage in the proceedings, the court finds that
there are no other, lesser sanctions that would be
satisfactory or effective. The court has already warned
plaintiff that failure to file a pretrial statement may
result in dismissal of the action. ECF No. 58. The
court's warning to a party that failure to obey the
court's order will result in dismissal can satisfy the
“consideration of the alternatives” requirement.
Ferdik, 963 F.2d at 1262 (citing Malone,
833 at 132-133; Henderson v. Duncan, 779 F.2d 1421,
1424 (9th Cir. 1986)). In light of the other matters which
cannot be properly addressed until plaintiff has filed a
pretrial statement, further extensions of time are not
feasible. Furthermore, given plaintiffs in forma pauperis
status and numerous assertions of continued financial
hardship, he would likely be unable to pay any monetary
sanctions, making them of little use. Therefore, the
undersigned is recommending that this action be dismissed
without prejudice as a result of plaintiff s failure to file
a pretrial statement.
IT IS HEREBY ORDERED that defendant's motion to modify
the September 26, 2019 Scheduling Order (ECF No. 61) is
denied as moot.
FURTHER RECOMMENDED that this action be dismissed without
prejudice. See Fed. R. Civ. P. 41(b).
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Any response
to the objections shall be served and filed within fourteen
days after service of the objections. The parties are advised