Moore v. Heisey et al

Filing 8

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED WITH PREJUDICE for failure to obey a Court Order re 1 Complaint filed by Steve C. Moore Motion referred to Judge O'Neill, signed by Magistrate Judge Dennis L. Beck on 04/17/2009. (Objections to F&R due by 5/20/2009)(Martin, S)

1 2 3 4 5 6 7 8 STEVE C. MOORE, 9 Plaintiff, 10 v. 11 HEISEY, et al., 12 Defendants. 13 / 14 15 Plaintiff Steve C. Moore ("Plaintiff") is a state prisoner proceeding pro se and in forma OBJECTION DUE WITHIN THIRTY DAYS (Doc. 5) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO OBEY A COURT ORDER CASE NO. 1:08-cv-00918-LJO-DLB PC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 9, 2009, the Court 17 screened Plaintiff's complaint and ordered that Plaintiff either file an amended complaint or notify 18 the Court of willingness to proceed only on claims found to be cognizable within thirty days from 19 the date of service of the order. (Doc. 5.) More than thirty days have passed and Plaintiff has not 20 filed an amended complaint or otherwise responded to the court's order. 21 Local Rule 11-110 provides that "failure of counsel or of a party to comply with these Local

22 Rules or with any order of the Court may be grounds for the imposition by the Court of any and all 23 sanctions . . . within the inherent power of the Court." District courts have the inherent power to 24 control their dockets and "in the exercise of that power, they may impose sanctions including, where 25 appropriate . . . dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 26 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute an 27 action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 28 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 1

1 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 2 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 3 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 4 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 5 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 6 failure to lack of prosecution and failure to comply with local rules). 7 In determining whether to dismiss an action for lack of prosecution, failure to obey a court

8 order, or failure to comply with local rules, the court must consider several factors: (1) the public's 9 interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk 10 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 11 (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 12 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 13 In the instant case, the court finds that the public's interest in expeditiously resolving this

14 litigation and the court's interest in managing the docket weigh in favor of dismissal, as this case has 15 been pending since June 30, 2008. The third factor, risk of prejudice to defendant, also weighs in 16 favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 17 in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 18 factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed by the 19 factors in favor of dismissal discussed herein. Finally, a Court's warning to a party that his failure 20 to obey the court's order will result in dismissal satisfies the "consideration of alternatives" 21 requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d 22 at 1424. The Court's screening order expressly stated that if Plaintiff fails comply with this order, 23 the Court will dismiss this action for failure to obey a court order. Thus, Plaintiff had adequate 24 warning that dismissal would result from his noncompliance with the court's order. 25 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed with prejudice

26 for failure to obey a court order. 27 These Findings and Recommendations are submitted to the United States District Judge

28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 2

1 days after being served with these Findings and Recommendations, Plaintiff may file written 2 objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's 3 Findings and Recommendations." Plaintiff is advised that failure to file objections within the 4 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 5 1153 (9th Cir. 1991). 6 7 d274kd 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 IT IS SO ORDERED. Dated:

April 17, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE