Gaitan v. Rawers et al

Filing 7

FINDINGS and RECOMMENDATIONS Recommending That Case Be Dismissed For Failure To Obey A Court Order (ECF No. 5 ), signed by Magistrate Judge Michael J. Seng on 6/29/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 8/4/2011. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAUL GAITAN
Plaintiff,

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vs.

1:11-cv-0401-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING THAT CASE BE
DISMISSED FOR FAILURE TO OBEY A
COURT ORDER

SCOTT RAWERS, et. al.,
(ECF No. 5)

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Defendants.
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_____________________________/
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Plaintiff Raul Gaitan (“Plaintiff”), proceeding pro se, filed this civil action on April 20,

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2006. On March 10, 2011, the Court severed Plaintiff’s claims from those of his co-

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plaintiffs and opened the above-captioned civil case with Gaitan as the sole Plaintiff.

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(Order, ECF No. 2.) Plaintiff was ordered to file an amended complaint setting forth only

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his claims and to submit an application to proceed in forma pauperis or pay the $350.00

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filing fee by April 12, 2011. (Id.) Plaintiff failed to do either, and on April 26, 2011, the

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Court ordered Plaintiff to show cause why his action should not be dismissed if he failed

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to file an amended complaint setting forth only his personal claims and failed to file an

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application to proceed in forma pauperis or pay the full $350.00 filing fee by May 25, 2011.

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(Order, ECF No. 5.) Plaintiff was put on notice that failure to comply with that Order and

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meet the Court’s deadline would result in dismissal of this action. The deadline has now
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expired, and Plaintiff has not filed an amended complaint, paid the filing fee, filed a motion

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to proceed in forma pauperis or otherwise responded to the Court's Order.

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

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

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

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

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

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

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

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

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1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment

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

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

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

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

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(dismissal 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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this litigation and the Court’s interest in managing the docket weigh in favor of dismissal.
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The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a

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

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

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

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in favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure

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to obey the court’s order will result in dismissal satisfies the “consideration of alternatives”

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requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson,

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779 F.2d at 1424. The Court’s Order expressly stated: “Failure to comply with this order

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will result in dismissal of this action." (Order, ECF No. 5.) Thus, Plaintiff had adequate

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warning that dismissal would result 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.

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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 thirty days after being served with these findings and recommendations, any party

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

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Any reply to the objections shall be served and filed within ten days after service of the

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objections. The parties are advised that failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Y1st, 951 F.2d 1153

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(9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
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June 29, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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