McMaster v. Spearman et al

Filing 144

FINDINGS and RECOMMENDATION to Dismiss Case for Failure to Prosecute and Obey a Court Order 138 , 141 , signed by Magistrate Judge Sheila K. Oberto on 8/8/17: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA McMASTER,

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Plaintiff,

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v.

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NGUYEN, et al.,

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Case No. 1:10-cv-01407-AWI-SKO (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS CASE FOR FAILURE TO
PROSECUTE AND OBEY A COURT
ORDER
(Docs. 138, 141)

Defendants.

FOURTEEN (14) DAY DEADLINE

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Plaintiff, Dana McMaster, is a former state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. This action proceeds on

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Plaintiff’s Second Amended Complaint, filed January 3, 2013, against Defendants Sedwick,

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Espitia, and Pease of failure to protect Plaintiff, in violation of the Eighth Amendment, and

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against Defendant Carlson for retaliation, in violation of the First Amendment. The events giving

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rise to Plaintiff’s claims allegedly occurred between March 7, 2009, and April 20, 2009, at

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Pleasant Valley State Prison in Coalinga, California.

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On April 13, 2017, the Second Scheduling Order issued which scheduled this action for

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trial before District Judge Anthony W. Ishii, beginning on November 14, 2017. (Doc. 138.) That

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order required Plaintiff to file a pretrial statement on or before July 3, 2017. (Id.) Plaintiff failed

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to file a pretrial statement. Accordingly, on July 12, 2017, an order issued for Plaintiff to show

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cause within twenty-one (21) days why this action should not be dismissed for failure to comply

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with the Second Scheduling Order and for failure to prosecute this action. (Doc. 141.) That
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deadline has lapsed and Plaintiff has neither complied with the Second Scheduling Order, or with

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the July 12, 2017, order to show cause.

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Local Rule 110 provides that “failure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for the imposition by the Court of any and all

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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to

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control their dockets and “in the exercise of that power, they may impose sanctions including,

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where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute

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an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th 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, 1440-41 (9th Cir. 1988)

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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised

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of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for

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failure to comply with court order); 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 comply with local rules).

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

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order, or failure to comply with local rules, the Court must consider several factors: (1) the

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

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,

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46 F.3d at 53.

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The Court finds that 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 third factor, risk of

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prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury arises

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from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on
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their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein,

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particularly since this case is now over seven years old. Finally, a Court’s warning to a party that

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his failure to obey the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33;

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Henderson, 779 F.2d at 1424. The Second Scheduling Order clearly stated: “Failure to comply

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with the provisions of this Order or the Local Rules may result in the imposition of

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sanctions up to and including dismissal of the action, or entry of default.” (Doc. 138, p. 2

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(emphasis in original).) Further, the order to show cause which issued on July 12, 2017,

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cautioned that this action may be dismissed for Plaintiff’s failure to comply with the Second

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Scheduling Order and gave Plaintiff opportunity to file his pretrial statement, a statement

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explaining his delay, or a voluntary dismissal. (Doc. 141.) Thus, Plaintiff had adequate warning

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that dismissal may result from his noncompliance with the Court’s orders.
Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with

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prejudice based on Plaintiff’s failure to obey the Second Scheduling Order (Doc. 138).

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These Findings and Recommendations will be 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)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, the parties may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

August 8, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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