Valencia v. Harris et al

Filing 42

FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 41 signed by Magistrate Judge Michael J. Seng on 12/11/2014. Referred to Judge Anthony W. Ishii; Objections to F&R due by 12/29/2014. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DON VALENCIA,

12
13
14
15
16
17

Plaintiff,
v.
HARRIS, et al.,
Defendants.

CASE NO. 1:10-cv-01725-AWI-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
OBEY COURT ORDER AND FAILURE TO
PROSECUTE
(ECF No. 41)
FOURTEEN (14) DAY OBJECTION
DEADLINE

18

Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this

19

civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

20

Defendants Harris, Fell, Riggs, Webb, Hittle, Anderson, Dean, and Scott on Plaintiff’s

21

Eighth Amendment failure to protect claim. (ECF No. 15.)

22

Defendants filed a motion for summary judgment on August 1, 2014. (ECF No.

23

40.) Plaintiff did not file an opposition or statement of non-opposition as required under

24

Local Rule 230(l). Accordingly, on November 7, 2014, the Court advised Plaintiff of his

25

rights, obligations, and methods for opposing Defendants’ motion, and afforded Plaintiff

26

an additional twenty-one days to file an opposition or statement of non-opposition. (ECF

27

No. 41.) Plaintiff was warned that his failure to file an opposition or statement of non-

28

1
2
3

opposition could result in dismissal of the action for failure to prosecute.
The twenty-one day deadline passed without Plaintiff either filing an opposition or
statement of non-opposition, or seeking an extension of time to do so.

4

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

5

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

6

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

7

inherent power to control their dockets and “in the exercise of that power, they may

8

impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v.

9

Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with

10

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

11

to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

12

(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-

13

61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

14

complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure

15

to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

16

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

17

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

18

(dismissal for lack of prosecution and failure to comply with local rules).

19

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

20

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

21

factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need

22

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

23

favoring disposition of cases on their merits, and (5) the availability of less drastic

24

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

25

F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

26

In the instant case, the public’s interest in expeditiously resolving this litigation

27

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

28

factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a
2

1

presumption of injury arises from the occurrence of unreasonable delay in prosecuting

2

this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor –

3

public policy favoring disposition of cases on their merits – is greatly outweighed by the

4

factors in favor of dismissal discussed herein. Finally, as for the availability of lesser

5

sanctions, at this stage in the proceedings there is little available which would constitute

6

a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not

7

paid the filing fee for this action and is likely unable to pay, making monetary sanctions

8

of little use.

9
10

Based on the foregoing, it is HEREBY RECOMMENDED that the action be
dismissed, with prejudice, for failure to obey a court order and failure to prosecute.

11

These Findings and Recommendations are submitted to the United States District

12

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

13

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

14

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

15

document should be captioned “Objections to Magistrate Judge’s Findings and

16

Recommendations.” Any reply to the objections shall be served and filed within fourteen

17

(14) days after service of the objections. The parties are advised that failure to file

18

objections within the specified time may result in the waiver of rights on appeal.

19

Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir.

20

Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

21
22
23

IT IS SO ORDERED.
Dated:

December 11, 2014

/s/

24

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

25
26
27
28
3