Martin v. Adams et al

Filing 10

FINDINGS And RECOMMENDATIONS To Dismiss Plaintiff's Complaint For Failure To Prosecute And Failure To Comply With The Court's Order (Doc. 9 ), signed by Magistrate Judge Jennifer L. Thurston on 5/8/2012. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 5/25/2012.(Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN A. MARTIN,

Case No. 1:10-cv-01153 AWI-JLT (PC)

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v.
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Plaintiff, FINDINGS AND RECOMMENDATIONS
TO DISMISS PLAINTIFF’S
COMPLAINT FOR FAILURE TO
PROSECUTE AND FAILURE TO
COMPLY WITH THE COURT’S ORDER

DERRAL G. ADAMS, et al.,
(Doc. 9).

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Defendants.

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Plaintiff Steven Martin, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983. On April 12, 2012, the Court dismissed Plaintiff’s Complaint with

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leave to amend and ordered Plaintiff to file an amended complaint within 21 days of the date the

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Court served Plaintiff with the order. (Doc. 9). Plaintiff was required to file his First Amended

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Complaint by May 3, 2012. (Id.) Plaintiff has failed to do so. For the reasons set forth below,

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the Court recommends Plaintiff’s action be dismissed.

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I.

Discussion and Analysis

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“District courts have inherent power to control their dockets,” and in exercising that

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power, a court may impose sanctions including dismissal of an action. Thompson v. Housing

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Authority of Los Angeles, 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 or failure to obey a court order, or

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failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995)

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(dismissal for failure to comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th
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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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failure to prosecute and to comply with local rules).

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In determining whether to dismiss an action for failure to prosecute, failure to obey a court
order, or failure to comply with the Local Rules, the Court must consider several factors,
including: “(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 sanctions.” Henderson,

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779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the

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defendants also weighs in favor of dismissal, since a presumption of injury arises from the
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occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The Court will not, and cannot, hold the case in abeyance based

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upon Plaintiff’s failure to pay the filing fee and prosecute this action. Further, the factors in favor

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of dismissal outweigh the policy favoring disposition of cases on their merits.

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In its April 12, 2012 order, the Court warned Plaintiff that if he failed to comply with the

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order, this Court would recommend that the action be dismissed.” (Doc. 9 at 9). Thus, Plaintiff

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had adequate warning that dismissal would result from his noncompliance with the Court’s order,

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and this satisfies the requirement that the Court consider less drastic measures than dismissal of

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the action. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Moreover, no lesser sanction

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is feasible given the Court’s inability to communicate with Plaintiff.

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Accordingly, IT IS HEREBY RECOMMENDED:
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This action be DISMISSED WITHOUT PREJUDICE; and

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The Clerk of Court be directed to close this action because this order terminates

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the action in its entirety. These Findings and Recommendations are submitted to the United

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

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and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District

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of California. Within 14 days after being served with these Findings and Recommendations, any

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party may file written objections with the court.

Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

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

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IT IS SO ORDERED.
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Dated:

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May 8, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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