Vasquez v. Bakersfield Police Department et al
Filing
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FINDINGS and RECOMMENDATIONS that the matter be DISMISSED signed by Magistrate Judge Jennifer L. Thurston on 8/26/2011. Objections to F&R due by 9/16/2011.(Leon-Guerrero, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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) Case No. 1:11-cv-01121 OWW JLT
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Plaintiff,
) FINDINGS AND RECOMMENDATION THAT
) THE MATTER BE DISMISSED
vs.
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BAKERSFIELD POLICE
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DEPARTMENT, et al.,
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Defendants.
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_______________________________________ )
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On July 7, 2011, Plaintiff filed this action against the Bakersfield Police Department and two
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individual officers. (Doc. 1). On July 14, 2011, the Court issued its order dismissing the matter with
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leave to amend. (Doc. 5) Notably, the Court’s order was based upon the fact that the complaint
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alleged that the force the officers used was reasonable and because the pleading failed to identify any
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unconstitutional custom or policy of the municipal entity that Plaintiff contended was at issue. Id.
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JESUS SOTO VASQUEZ,
The Court granted Plaintiff 30 days leave to file his amended complaint. Id. at 6. In the
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order, the Court cautioned Plaintiff that if he failed to file his amended complaint, the Court would
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recommend that the matter be dismissed. Id. However, Plaintiff has failed to file an amended
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complaint.
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The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a
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party to comply with . . . any order of the Court may be grounds for the imposition by the Court of
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any and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have
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inherent power to control their dockets,” and in exercising that power, a court may impose sanctions
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including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829,
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831 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a party’s failure to
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prosecute an action or failure to obey a court order, or failure to comply with local rules. See, e.g.
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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an
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order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th
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Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,
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1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).
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In determining whether to dismiss an action for failure to obey a court order or failure to
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comply with the Local Rules, the court must consider several factors, including: “(1) the public’s
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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
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of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and
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(5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963
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F.2d at 1260-61; Thomspon, 782 F.2d at 831.
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Here, the public’s interest in expeditiously resolving this litigation and the Court’s interest in
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managing the docket weigh in favor of dismissal. The risk of prejudice to the defendant also weighs
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in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay
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in prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The
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policy favoring disposition of cases on their merits is outweighed by the factors in favor of dismissal.
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Notably, the complaint was plead in such a way as to admit that no constitutional deprivation
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occurred. (Doc. 1). Moreover, in the screening order, the Court warned Plaintiff that his failure to
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file the amended complaint in compliance with the Court’s order would result in a recommendation
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that the matter be dismissed. (Doc. 5 at 6.) Thus, Plaintiff had adequate warning that dismissal
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would result from his noncompliance with the Court’s order.
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Accordingly, for the reasons set forth in the Court’s July 14, 2011 screening order and
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because Plaintiff has failed to file an amended complaint that corrects the deficiencies identified in
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his pleadings, it is HEREBY RECOMMENDED that:
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This action be DISMISSED WITH PREJUDICE for failure to state a claim;
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2.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being
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served with these findings and recommendations, Plaintiff may file written objections with the
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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991).
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IT IS SO ORDERED.
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This case be closed.
Dated: August 26, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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