Olson v. State of California CDCR

Filing 11

FINDINGS and RECOMMENDATION that Plaintiff's 2 Complaint, be Dismissed for Failure to Comply with a Court Order 6 , 8 , signed by Magistrate Judge Michael J. Seng on 6/29/11. Thirty-Day Deadline. Referred to Judge Wanger. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN OLSON,

1:11-cv-0380-OWW-MJS (PC)
FINDINGS AND RECOMMENDATION
THAT PLAINTIFF’S COMPLAINT BE
DISMISSED FOR FAILURE TO
COMPLY WITH A COURT ORDER

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Plaintiff,
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v.
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(ECF Nos. 6 and 8)

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STATE OF CALIFORNIA CDCR,
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Defendant.
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/
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Plaintiff Steven Olson (“Plaintiff”), proceeding pro se, filed this civil action on
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February 28, 2011. On March 11, 2011, the Plaintiff was ordered to submit an
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application to proceed in forma pauperis or pay the $350.00 filing fee by April 7, 2011.
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(Order, ECF No. 6.) Plaintiff was warned that failure to comply with the Court’s Order
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would result in dismissal of the action. (Id.) On April 18, 2011, the Court granted the
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Plaintiff an extension of his deadline to proceed in forma pauperis to May 20, 2011.
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(Order, ECF No. 8.) The May 20, 2011 deadline has passed and Plaintiff has not
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complied with or otherwise responded to the Court’s Order. He has not paid the
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$350.00 filing fee in full or filed an application to proceed in forma pauperis.
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Local Rule 110 provides that “failure of counsel or of a party to comply with
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these Local Rules or with any order of the Court may be grounds for the imposition by

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

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courts have the inherent power to control their dockets and “in the exercise of that

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power, they may impose sanctions including, where appropriate . . . dismissal of a

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case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may

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dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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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);

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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

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1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring

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pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833

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F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order);

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of

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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

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

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several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the

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Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the

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public policy favoring disposition of cases on their merits; and (5) the availability of less

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

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Malone, 833 F.2d at 130; 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

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resolving this litigation and the Court’s interest in managing the docket weigh in favor

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of dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of

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dismissal, since a presumption of injury arises from the occurrence of unreasonable

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delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.

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1976). The fourth factor -- public policy favoring disposition of cases on their merits --

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is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a

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court’s warning to a party that his failure to obey the court’s order will result in

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dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet,

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963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s

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Order expressly stated: “Failure to comply with this order will result in dismissal of this

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action." (ECF No. 6.) Thus, Plaintiff had adequate warning that dismissal would result

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from his noncompliance with the Court’s Order.
Accordingly, the Court hereby RECOMMENDS that this action be dismissed

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without prejudice for failure to comply with the Court’s Order.
These Findings and Recommendations are submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(1). Within thirty days after being served with these findings and

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recommendations, any party may file written objections with the Court and serve a

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copy on all parties. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Any reply to the objections shall be served

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and filed within ten days after service of the objections. The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

ci4d6
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June 29, 2011

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE