Maldonado v. Benov et al

Filing 12

FINDINGS And RECOMMENDATION For Dismissal Of Plaintiff's Action With Prejudice (ECF Nos. 9 , 11 ), Objections Due Within Fourteen (14) Days, signed by Magistrate Judge Michael J. Seng on 3/28/2012. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 4/13/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANTONIO MALDONADO,

CASE NO. 1:10-cv-02346-AWI-MJS

Plaintiff,

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FINDINGS AND RECOMMENDATION FOR
DISMISSAL OF PLAINTIFF’S ACTION
WITH PREJUDICE

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v.

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(ECF NOS. 9, 11)
OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS

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BENOV, et al.,
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Defendants.
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On December 16, 2010, Plaintiff Antonio Maldonado, a federal prisoner proceeding

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pro se and in forma pauperis filed this civil rights action (ECF No. 1) alleging deliberate

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indifference to medical needs pursuant to Bivens v. Six Unknown Named Agents of

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Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens provides a remedy for violation

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of civil rights by federal actors. Plaintiff declined Magistrate Judge jurisdiction. (ECF No.

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7.)

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that ... the action or appeal ... fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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After screening, Plaintiff’s original Complaint was dismissed, but he was given leave

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to amend provided he did so on or before January 19, 2012. (ECF No. 9.) The Court’s

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Order Dismissing Complaint was served by mail but returned as undeliverable on

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December 27, 2011.1

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The Court then Ordered that by not later than March 21, 2012, Plaintiff either file an

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amended complaint with a current address or show cause why this case should not be

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dismissed for failure to state a claim, failure to comply with a Court Order and failure to

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prosecute. (ECF No. 11.) Plaintiff was advised that a failure to meet this deadline would

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result in the dismissal of this action subject to the “three strikes” provision set forth in 28

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U.S.C. § 1915(g). Silva v. Di Vittorio 658 F.3d 1090 (9th Cir. 2011). The Court’s said Order

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was served by mail but returned as undeliverable on March 13, 2012. Plainitff has not

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responded to it in any ay.

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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 and

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

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

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

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Auth., 782 F.2d 829, 831-32 (9th Cir. 1986). A court may dismiss an action, with prejudice,

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

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

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61

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Local Rule 183 (b) provides that a party appearing in propria persona shall keep the Court and
opposing parties advised as to his or her current address and that a failure to provide a current address
within 63 days of returned mail is grounds for dismissal of the action for failure to prosecute.

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

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

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

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

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

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for 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

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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 manage

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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 resolving

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litigation and the Court’s interest in managing its docket weigh in favor of dismissal. In

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these respects, the Court has a vast caseload before it and can not indulge Plaintiff’s

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disregard of its Orders and Rules. The third factor, risk of prejudice to the Defendants, also

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weighs in favor of dismissal, since a presumption of injury arises from delay in resolving

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

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

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factors in favor of dismissal discussed herein. Given Plaintiff’s non-responsiveness to the

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Court’s earlier orders and his pro se and in forma pauperis status, “less drastic

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alternatives” other than those taken to date (i.e., repeated orders to Plaintiff to comply) do

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not exist and the ultimate sanction of dismissal is warranted. Malone, 833 at 132-33.

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Plaintiff’s Complaint fails to state any cognizable federal claim. He has failed to keep

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the Court and opposing parties apprised of his current address and failed to comply with

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the Court’s Local Rules and repeated Orders. No lesser sanction than dismissal is

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appropriate.
Accordingly, it is RECOMMENDED that this matter be DISMISSED by the District

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Judge.

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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 Recommendation,

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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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Recommendation.” Any reply to the Objections shall be served and filed within ten (10)

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days after service of the Objections. The parties are 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

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

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IT IS SO ORDERED.

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Dated:
ci4d6

March 28, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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