Roberts v. Salano et al

Filing 82

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 1/25/2012 recommending that action be dismissed for Plaintiff's failure to prosecute. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/27/2012. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JAMES EDWARD ROBERTS,

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Plaintiff,
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v.
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C/O SALANO,
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Defendant.
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____________________________________)

NO. 1:08 cv 00162 LJO GSA PC
FINDINGS AND
RECOMMENDATION THAT THIS
ACTION BE DISMISSED FOR
PLAINTIFF’S FAILURE TO
PROSECUTE
OBJECTIONS DUE IN THIRTY
DAYS

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action
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pursuant to 42 U.S.C. § 1983. This action was referred to this Court pursuant to 28 U.S.C.
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§(b)(1)(B) and Local Rule 302.
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On December 15, 2011, an order was entered, directing plaintiff to file an opposition to
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Defendant’s motion for summary judgment. Plaintiff was specifically cautioned that his failure
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to comply would result in dismissal for failure to obey a court order. Plaintiff has not filed an
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opposition to the motion for summary judgment.
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Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
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Rules or with any order of the Court may be grounds for the imposition by the Court of any and
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all sanctions . . . within the inherent power of the Court.” District courts have the inherent power
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to control their dockets and “in the exercise of that power, they may impose sanctions including,

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where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute

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an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.

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1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal

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for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.

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1986)(dismissal for failure to lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey a

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court order, or failure to comply with local rules, the court must consider several factors: (1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,

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46 F.3d at 53.

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Here, the Court finds that the public’s interest in expeditiously resolving this litigation

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and the court’s interest in managing the docket weigh in favor of dismissal. The third factor, risk

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of prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury arises

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from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on

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their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally,

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a court’s warning to a party that his failure to obey the court’s order will result in dismissal

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satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;

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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424.
Accordingly, the court HEREBY RECOMMENDS that this action be dismissed for
plaintiff's failure to obey a court order.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b) (1). Within thirty

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
6i0kij

January 25, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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