Romero v. Katavich et al

Filing 20

FINDINGS and RECOMMENDATIONS for Dismissal of Plaintiff's 1 Complaint for Failure to Obey a Court Order signed by Magistrate Judge Michael J. Seng on 08/08/2012. Referred to Judge O'Neill; Objections to F&R due by 8/27/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CASE NO. 1:11-cv-0935-LJO-MJS (PC)
DANNY ROMERO,

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PLAINTIFF’S
COMPLAINT FOR FAILURE TO OBEY A
COURT ORDER

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v.
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JOHN N. KATAVICH, et al.
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(ECF No. 13)
Defendants.

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OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Plaintiff Danny Romero (“Plaintiff”) is a former state prisoner proceeding pro se and
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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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The Court screened Plaintiff’s Complaint on February 14, 2012, and found that it
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failed to state a cognizable claim, but gave Plaintiff an opportunity to file an amended
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complaint on or before March 19, 2012. (ECF No. 13.) The Court informed Plaintiff in this
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order that if he failed to file an amended complaint, his action would be “dismissed, with
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prejudice, for failure to state a claim.” (Id.) March 19, 2012, passed without Plaintiff having
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filed an amended complaint or a request for an extension of time to do so.
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The Court issued an Order to Show Cause on April 3, 2012, directing Plaintiff to file
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an amended complaint or show cause why his case should not be dismissed for failure to

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comply with a court order and failure to state a claim. (ECF No. 14.) Plaintiff was to

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respond by April 30, 2012. (Id.) Plaintiff responded to the Order to Show Cause and

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requested that his time to file an amended complaint be extended. (ECF No. 15.) The

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Court granted this request and discharged the Order to Show Cause. (ECF Nos. 16 & 19.)

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Plaintiff then filed a second motion for an extension of time. (ECF No. 17.) The Court

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granted this motion and Plaintiff was to file an amended complaint by June 27, 2012. (ECF

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No. 18.) June 27, 2012 has passed and Plaintiff has once again failed to file an amended

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complaint by the extended and re-extended deadline.

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

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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 a 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

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manage 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 its 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 Screening Order expressly stated: “If Plaintiff fails to file an

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amended complaint in compliance with this order, this action will be dismissed, with

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prejudice, for failure to state a claim.” (ECF No. 12.) Thus, Plaintiff had adequate warning

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that dismissal would result from his noncompliance with the Court’s Order. The Court also

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gave Plaintiff numerous additional opportunities to file an amended complaint, and as of

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this date, Plaintiff has failed to respond to take advantage of any of the additional

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opportunities he was given.

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Based on the foregoing, the Court RECOMMENDS that this action be DISMISSED
based on Plaintiff’s failure to obey a court 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 fourteen (14) days after being served with these Findings and Recommendations,

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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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Recommendations." The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court's order. Martinez v. Y1 st,
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951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
ci4d6

August 8, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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