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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 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 12 Plaintiff, 13 v. 14 (ECF Nos. 6 and 8) 15 STATE OF CALIFORNIA CDCR, 16 Defendant. 17 / 18 Plaintiff Steven Olson (“Plaintiff”), proceeding pro se, filed this civil action on 19 February 28, 2011. On March 11, 2011, the Plaintiff was ordered to submit an 20 application to proceed in forma pauperis or pay the $350.00 filing fee by April 7, 2011. 21 (Order, ECF No. 6.) Plaintiff was warned that failure to comply with the Court’s Order 22 would result in dismissal of the action. (Id.) On April 18, 2011, the Court granted the 23 Plaintiff an extension of his deadline to proceed in forma pauperis to May 20, 2011. 24 (Order, ECF No. 8.) The May 20, 2011 deadline has passed and Plaintiff has not 25 complied with or otherwise responded to the Court’s Order. He has not paid the 26 $350.00 filing fee in full or filed an application to proceed in forma pauperis. 27 Local Rule 110 provides that “failure of counsel or of a party to comply with 28 1 these Local Rules or with any order of the Court may be grounds for the imposition by 2 the Court of any and all sanctions . . . within the inherent power of the Court.” District 3 courts have the inherent power to control their dockets and “in the exercise of that 4 power, they may impose sanctions including, where appropriate . . . dismissal of a 5 case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may 6 dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 7 failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 8 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 9 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 10 comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 11 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 12 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 13 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); 14 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of 15 prosecution and failure to comply with local rules). 16 In determining whether to dismiss an action for lack of prosecution, failure to 17 obey a Court order, or failure to comply with local rules, the Court must consider 18 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 19 Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 20 public policy favoring disposition of cases on their merits; and (5) the availability of less 21 drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; 22 Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 23 In the instant case, the Court finds that the public’s interest in expeditiously 24 resolving this litigation and the Court’s interest in managing the docket weigh in favor 25 of dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of 26 dismissal, since a presumption of injury arises from the occurrence of unreasonable 27 delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 28 1976). The fourth factor -- public policy favoring disposition of cases on their merits -- 1 is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a 2 court’s warning to a party that his failure to obey the court’s order will result in 3 dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 4 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s 5 Order expressly stated: “Failure to comply with this order will result in dismissal of this 6 action." (ECF No. 6.) Thus, Plaintiff had adequate warning that dismissal would result 7 from his noncompliance with the Court’s Order. Accordingly, the Court hereby RECOMMENDS that this action be dismissed 8 9 without prejudice for failure to comply with the Court’s Order. These Findings and Recommendations are submitted to the United States 10 11 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 12 636(b)(1). Within thirty days after being served with these findings and 13 recommendations, any party may file written objections with the Court and serve a 14 copy on all parties. Such a document should be captioned “Objections to Magistrate 15 Judge’s Findings and Recommendations.” Any reply to the objections shall be served 16 and filed within ten days after service of the objections. The parties are advised that 17 failure to file objections within the specified time may waive the right to appeal the 18 District Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 22 IT IS SO ORDERED. Dated: ci4d6 23 24 25 26 27 28 June 29, 2011 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE

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