Porter-Bey v. Lappin et al

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 5/10/2012 recommending that 1 Prisoner Civil Rights Complaint be DISMISSED. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 5/29/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEROME A. PORTER-BEY,

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1:10-cv-0891-LJO-MJS (PC)

Plaintiff,

FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PLAINTIFF’S
COMPLAINT FOR FAILURE TO OBEY
A COURT ORDER

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v.
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(ECF No. 19)
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HARLEY G LAPPIN, et al.,
OBJECTIONS DUE WITHIN
FOURTEEN DAYS

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Defendants.
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Plaintiff Jerome A. Porter-Bey (“Plaintiff”), a former federal prisoner proceeding pro
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se and in forma pauperis, filed this civil action on May 3, 2010, pursuant to Bivens v. Six
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Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which
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provides a remedy for the violation of civil rights by federal actors.
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On April 16, 2012, the Court issued an Order directing Plaintiff to file an amended
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complaint by April 27, 2012. (ECF No. 19.) In the alternative, Plaintiff was to show cause
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why his case should not be dismissed for failure to comply with a Court order and failure
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to state a claim. (Id.) April 27, 2012, has passed without Plaintiff complying with or
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otherwise responding to the Court’s Order.
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Local Rule 110 provides that “failure of counsel or of a party to comply with these
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Rules or with any order of the Court may be grounds for imposition by the Court of any
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and all sanctions . . . within the inherent power of the Court.” District courts have the
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inherent power to control their dockets and “in the exercise of that power, they may
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impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v.
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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with

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prejudice, based on a party’s failure to prosecute an action, failure to obey a court order,

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or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)

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(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)

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(dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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rules).

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

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a court order, or failure to comply with local rules, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the public’s interest in expeditiously

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resolving this litigation and the Court’s interest in managing its docket weigh in favor of

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dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of

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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay

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in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The

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fourth factor -- public policy favoring disposition of cases on their merits -- is greatly

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outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s

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

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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. The Court’s Order expressly

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stated: “Failure to meet this deadline will result in dismissal of this action.” (ECF No. 19.)

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Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance

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with the Court’s Order.

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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the Court

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hereby RECOMMENDS that this action be DISMISSED, with prejudice, based on

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Plaintiff’s failure to state a claim upon which relief may be granted under section 1983 and

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failure to obey the Court’s April 16, 2012, Order (ECF No. 19). This dismissal is subject

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to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-

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15620, 2011 WL 4436248, at *4 (9th Cir. Sept. 26, 2011).

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These Findings and Recommendations are submitted to the United States District

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

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Within fourteen (14) days after being served with these Findings and Recommendations,

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any party may file written objections with the Court and serve a copy on all parties. Such

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a document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." Any reply to the objections shall be served and filed within ten days

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after service of the objections. The parties are advised that failure to file objections within

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the specified time may waive the right to appeal the District Court's order. Martinez v. Y1

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st, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

ci4d6

May 10, 2012

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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