Tanksley v. CDC Avenal State Prison

Filing 15

FINDINGS and RECOMMENDATIONS recommending that this Action be Dismissed with Prejudice for Failure to Obey a Court Order and Failure to State a Claim, signed by Magistrate Judge Dennis L. Beck on 4/13/2009. Matter referred to Judge Wanger. Objections to F&R due by 5/6/2009. (Jessen, A)

1 2 3 4 5 6 7 8 MOODY WOODROW TANKSLEY, 9 Plaintiff, 10 v. 11 AVENAL STATE PRISON, et al., 12 Defendants. 13 14 15 16 Plaintiff Moody Woodrow Tanksley ("Plaintiff") is a state prisoner proceeding pro se and / OBJECTION DUE WITHIN TWENTY DAYS (Doc. 14) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO STATE A CLAIM CASE NO. 1:08-cv-00442-OWW-DLB (PC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

17 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 18, 2009, 18 the Court screened Plaintiff's first amended complaint and ordered that Plaintiff file a second 19 amended complaint within thirty days from the date of service of the order. (Doc. 14.) More 20 than thirty days have passed and Plaintiff has not filed a second amended complaint or otherwise 21 responded to the court's order. 22 Local Rule 11-110 provides that "failure of counsel or of a party to comply with these

23 Local Rules or with any order of the Court may be grounds for the imposition by the Court of any 24 and all sanctions . . . within the inherent power of the Court." District courts have the inherent 25 power to control their dockets and "in the exercise of that power, they may impose sanctions 26 including, where appropriate . . . dismissal of a case." Thompson v. Housing Auth., 782 F.2d 27 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party's 28 failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. 1

1 See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with 2 local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 3 comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 14404 41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to 5 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 6 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 7 1424 (9th Cir. 1986) (dismissal for failure to lack of prosecution and failure to comply with local 8 rules). 9 In determining whether to dismiss an action for lack of prosecution, failure to obey a

10 court order, or failure to comply with local rules, the court must consider several factors: (1) the 11 public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; 12 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 13 their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 14 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 15 46 F.3d at 53. 16 In the instant case, the court finds that the public's interest in expeditiously resolving this

17 litigation and the court's interest in managing the docket weigh in favor of dismissal, as this case 18 has been pending since June 30, 2008. The third factor, risk of prejudice to defendant, also 19 weighs in favor of dismissal, since a presumption of injury arises from the occurrence of 20 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 21 1976). The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly 22 outweighed by the factors in favor of dismissal discussed herein. Finally, a Court's warning to a 23 party that his failure to obey the court's order will result in dismissal satisfies the "consideration 24 of alternatives" requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; 25 Henderson, 779 F.2d at 1424. The Court's order expressly stated, "if Plaintiff fails comply with 26 this order, this action will be dismissed for failure to obey a court order and for failure to state a 27 claim." Thus, Plaintiff had adequate warning that dismissal would result from his 28 noncompliance with the court's order. 2

1 // 2 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed with

3 prejudice for failure to obey a court order and failure to state a claim. 4 These Findings and Recommendations are submitted to the United States District Judge

5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty 6 (20) days after being served with these Findings and Recommendations, Plaintiff may file 7 written objections with the Court. Such a document should be captioned "Objections to 8 Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file 9 objections within the specified time may waive the right to appeal the District Court's order. 10 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 13 3b142a 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 IT IS SO ORDERED. Dated:

April 13, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE