United States District Court, E.D. California
JIMMIE L. DOSS, Plaintiff,
v.
BURNES, et al., Defendants.
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION, WITHOUT PREJUDICE, FOR FAILURE TO OBEY A
COURT ORDER AND FAILURE TO PROSECUTE (ECF NO. 7) FOURTEEN
(14) DAY DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
I.
Background
Plaintiff
Jimmie L. Doss (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action under 42 U.S.C. § 1983. This
matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On
November 19, 2019, the Court screened the complaint and
ordered Plaintiff to file an amended complaint within thirty
(30) days to proceed with this action. (ECF No. 7.) The Court
expressly warned Plaintiff that his failure to comply with
the Court's order would result in dismissal of this
action. (Id. at 8.) The deadline for Plaintiff to
file an amended complaint has expired, and Plaintiff has
failed to file an amended complaint or a notice of voluntary
dismissal.
II.
Failure to Prosecute and Failure to Obey a Court
Order
A.
Legal Standard
Local
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. Hous. 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
order).
In
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).
B.
Discussion
Here,
Plaintiff's amended complaint is overdue, and he has
failed to comply with the Court's order. The Court cannot
effectively manage its docket if Plaintiff ceases litigating
his case. Thus, the Court finds that both the first and
second factors weigh in favor of dismissal.
The
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 W., 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) Products Liability Litigation,
460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
Finally,
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
November 19, 2019 order expressly warned Plaintiff that his
failure to file an amended complaint or a notice of voluntary
dismissal would result in a recommendation of dismissal of
this action. (ECF No. 7, p. 8.) Thus, Plaintiff had adequate
warning that dismissal could result from his noncompliance.
Additionally,
at this stage in the proceedings there is little available to
the Court that 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 his case.
III.
Conclusion ...