O'Dell v. Allison et al

Filing 29

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, With Prejudice, for Failure to Obey a Court Order and Failure to Prosecute, and That This Dismissal Count as a Strike Pursuant to 28 USC 1915(g) re 1 Notice of Removal signed by Magistrate Judge Michael J. Seng on 5/11/2015. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONNE O’DELL,

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Plaintiff,
v.
KATHLEEN ALLISON, et al.,
Defendants.

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CASE NO. 1:11-cv-01202-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITH PREJUDICE
FOR FAILURE TO OBEY A COURT
ORDER AND FAILURE TO PROSECUTE
(ECF No. 27)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought

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pursuant to 42 U.S.C. § 1983. On September 30, 2014, Plaintiff’s complaint was

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dismissed for failure to state a claim, but he was given leave to file a first amended

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complaint within thirty days. (ECF No. 19.) The Court has awaited Plaintiff’s amended

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complaint since that date.

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Plaintiff first sought and received a thirty day extension of time in which to file his

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amended pleading. (ECF Nos. 20 & 22.) The extended deadline passed without Plaintiff

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either filing an amended pleading or seeking an extension of time to do so. On

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December 30, 2014, the Court ordered Plaintiff to show cause, within fourteen days, why

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the action should not be dismissed for failure to obey a court order and failure to

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prosecute. (ECF No. 23.) Plaintiff did not respond to the Court’s order to show cause. On

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January 21, 2015, the Court issued findings and a recommendation that the action be

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dismissed based on Plaintiff’s failure to obey a court order and failure to prosecute. (ECF

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No. 25.)

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On January 23, 2015, Plaintiff filed a motion for a ninety-day extension of time on

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the ground he had been moved to a different institution and had not received his legal

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materials. (ECF No. 26.) The Court noted that Plaintiff’s numerous failures to respond to

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Court orders constituted grounds for dismissal, but nonetheless granted Plaintiff one final

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extension of time to file his amended pleading. (ECF No. 27.) The Court also discharged

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its order to show cause and vacated the findings and recommendation. Plaintiff was

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warned that, absent changed circumstances or other good cause, no further extensions

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of time would be given.

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Nonetheless, Plaintiff has, once again, failed to file an amended pleading by the
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

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

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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, failure to obey a court order, or failure

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to 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-

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61 (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

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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 a 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

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factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need

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to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy

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favoring disposition of cases on their merits, and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833

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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 public’s interest in expeditiously resolving this litigation

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and the Court’s interest in managing its docket weigh in favor of dismissal. The third

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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

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

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public policy favoring disposition of cases on their merits – is greatly outweighed by the

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factors in favor of dismissal discussed herein. Finally, as for the availability of lesser

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sanctions, at this stage in the proceedings there is little available which would constitute

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a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff is likely

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unable to pay monetary sanctions, making such sanctions of little use.

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Based on the foregoing, it is HEREBY RECOMMENDED that the action be

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dismissed, with prejudice, for failure to obey a court order and failure to prosecute, and

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that dismissal count as a strike pursuant to 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658

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F.3d 1090, 1098 (9th Cir. 2011).

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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 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, any

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

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen
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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 11, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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