Gregorio Funtanilla v. Williams et al

Filing 85

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 1/16/2015 recommending that action be dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/2/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORIO FUNTANILLA, JR.,
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Plaintiff,

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vs.
ROMAN W. WILLIAMS, et al.,
Defendants.

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1:10-CV-01624 LJO DLB PC
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
COMPLY WITH A COURT ORDER
(FOURTEEN DAY DEADLINE)

Plaintiff Gregorio Funtanilla, Jr., (“Plaintiff”) is a prisoner in the custody of the
California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro
se in this civil rights action pursuant to 42 U.S.C. § 1983.
On August 27, 2014, the Court issued a discovery and scheduling order. Among other

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things, the order required Plaintiff and Defendants to provide initial disclosures on or before

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October 13, 2014. On October 13, 2014, Defendants provided Plaintiff with their initial

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disclosures and filed Defendants’ statement of initial disclosures. On November 25, 2014,

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Defendants moved to modify the scheduling order because Plaintiff had failed to provide

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Defendants with his initial disclosures as ordered by the Court. On December 9, 2014, the Court

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issued an order directing Plaintiff to show cause within fourteen days why the action should not

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be dismissed for failure to comply with a court order. Over fourteen days have passed and
Plaintiff has failed to comply or otherwise respond to the court order.

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Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
Rules or with any order of the Court may be grounds for the imposition by the Court of any and
all sanctions . . . within the inherent power of the Court.” “District courts have the inherent
power to control their dockets and in the exercise of that power, they may impose sanctions

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including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d
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829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party s
failure to prosecute an action, failure to obey a court order, or failure to comply with local rules.
See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with

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local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to

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comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-

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41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to

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keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.

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1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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

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rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey a
court 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
their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;
Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,
46 F.3d at 53.
In the instant case, the Court finds that the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal. The third

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factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of

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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v.
Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring
disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal
discussed herein. Finally, a court’s warning to a party that his failure to obey the court’s order
will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik v.

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Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s
order expressly stated: “Failure to show cause, or failure to respond to this order, may result in
dismissal of this action.” Thus, Plaintiff had adequate warning that dismissal would result from
his noncompliance with the Court’s order.
RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based
on Plaintiff's failure to obey the Court’s orders of August 27, 2014, and December 9, 2014.

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These Findings and Recommendations are submitted to the United States District Judge

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

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(14) days after date of service of these Findings and Recommendations, Plaintiff may file written
objections with the Court. Such a document should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.

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Dated:

/s/ Dennis

January 16, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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