Josephine Flores v. City of Tulare et al
Filing
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FINDINGS and RECOMMENDATIONS Re: Dismissal of 1 Action for Failure to Comply with a Court Order and Failure to Prosecute signed by Magistrate Judge Sandra M. Snyder on 4/21/2011. Referred to Judge Anthony W. Ishii. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSEPHINE FLORES,
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1:10-cv-00394-AWI-SMS
FINDINGS AND RECOMMENDATION
RE: DISMISSAL OF ACTION FOR
FAILURE TO COMPLY WITH A COURT
ORDER AND FAILURE TO PROSECUTE
(Doc. 17)
Plaintiff,
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vs.
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CITY OF TULARE, et al.,
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Defendants.
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Plaintiff is proceeding pro se in this civil rights action
pursuant to 42 U.S.C. § 1983.
On March 14, 2011, plaintiff’s counsel’s motion to withdraw
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as counsel of record for plaintiff was granted.
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granted to and through April 15, 2011, to advise the Court, in
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writing, of either her new counsel of record -OR- of her desire
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to proceed with this case In Propria Persona.
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has failed to comply with or otherwise respond to the Court’s
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order.
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Plaintiff was
To date, plaintiff
Local Rule 110 provides that “failure of counsel or of a
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party to comply with these Local Rules or with any order of the
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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.”
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District courts have the inherent power to control their dockets
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and “in the exercise of that power, they may impose sanctions
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including, where appropriate . . . dismissal of a case.”
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Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).
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court may dismiss an action, with prejudice, based on a party’s
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failure to prosecute an action, failure to obey a court order, or
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failure to comply with local rules.
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46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance
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with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th
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See, e.g. Ghazali v. Moran,
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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,
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1440-41 (9th Cir. 1988)(dismissal for failure to comply with
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local rule requiring pro se plaintiffs to keep court apprised of
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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th
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Cir. 1987)(dismissal for failure to comply with court order);
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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
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(dismissal for failure to lack of prosecution and failure to
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comply with local rules).
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In determining whether to dismiss an action for lack of
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prosecution, failure to obey a court order, or failure to comply
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with local rules, the court must consider several factors: (1)
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the public’s interest in expeditious resolution of litigation;
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(2) the court’s need to manage its docket; (3) the risk of
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prejudice to the defendants; (4) the public policy favoring
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disposition of cases on their merits; and, (5) the availability
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of less drastic alternatives.
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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik,
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963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
Thompson, 782 F.2d at 831;
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In the instant case, the court finds that the public’s
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interest in expeditiously resolving this litigation and the
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court’s interest in managing the docket weigh in favor of
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dismissal.
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also weighs in favor of dismissal, since a presumption of injury
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arises from the occurrence of unreasonable delay in prosecuting
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an action.
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1976).
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of cases on their merits -- is greatly outweighed by the factors
The third factor, risk of prejudice to defendants,
Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.
The fourth factor -- public policy favoring disposition
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in favor of dismissal discussed herein.
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warning to a party that failure to obey the court’s order will
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result in dismissal satisfies the “consideration of alternatives”
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requirement.
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at 132-33; Henderson, 779 F.2d at 1424.
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March 14, 2011, expressly stated: “Pro Se Plaintiff is herein
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advised that failure to comply with the Local Rules, Federal
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Rules, or a Court Order, including this Order, will be grounds
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for dismissal of this action or other appropriate sanctions. See
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Local Rule 110; Fed.R.Civ.P. 41(b).”
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adequate warning that dismissal could result from non-compliance
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with the court’s order.
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Finally, a court’s
Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833
The court’s order of
Thus, plaintiff had
Accordingly, the court HEREBY RECOMMENDS that this action be
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dismissed in its entirety based on plaintiff's failure to obey
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the court’s order of March 14, 2011, and failure to prosecute.
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These Findings and Recommendation are submitted to the
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United States District Judge assigned to the case, pursuant to
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the provisions of Title 28 U.S.C. § 636(b)(l).
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days after being served with these Findings and Recommendation,
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Within ten (10)
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plaintiff may file written objections with the court.
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document should be captioned "Objections to Magistrate Judge's
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Findings and Recommendation."
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to file objections within the specified time may waive the right
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to appeal the District Court's order.
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1153 (9th Cir. 1991).
Such a
Plaintiff is advised that failure
Martinez v. Ylst, 951 F.2d
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IT IS SO ORDERED.
Dated:
icido3
April 21, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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