Alec v. Calaveras County, et al

Filing 40

ORDER DISMISSING this Action for Failure to Obey a Court Order signed by Magistrate Judge Gary S. Austin on 05/31/2013. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MANDY EVA ALEC,
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Plaintiff,
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v.
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CALAVERAS COUNTY; CALVERAS
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COUNTY SHERIFF’S DEPARTMENT;
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GARY KNUTZ CALAVERAS COUNTY
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SHERIFF, and MICHELLE BUSBY,
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Defendants.
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_____________________________________ )

1:11-cv-1385 GSA
ORDER DISMISSING THIS ACTION
FOR A FAILURE TO OBEY A COURT
ORDER

(Doc. 37)

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PROCEDURAL BACKGROUND
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Defendants County of Calaveras, (erroneously sued as Calaveras County), Calaveras
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County Sheriff’s Department, and Gary Knutz, Sheriff of Calaveras County (“Defendants”),
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removed this civil rights action from the Calaveras County Superior Court to this Court on
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August 18, 2011 (Doc. 1.).1 In the Complaint, Plaintiff, Mandy Eva Alec (“Plaintiff”), alleges

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violations pursuant to 42 U.S.C. § 1983. Plaintiff is currently proceeding pro se as this Court
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permitted her attorney to withdraw from this case on July 2, 2012. (Doc. 33).
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All parties in this case have consented to Magistrate Judge jurisdiction. (Docs. 8 & 10). Michelle Busby
was terminated as a defendant in this action on December 20, 2011. (Doc. 20).

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On March 15, 2013, Defendants filed a Motion for Summary Judgment. (Doc. 37). The

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hearing on the motion was scheduled for April 26, 2013. Pursuant to Local Rule 230 (c),

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Plaintiff was required to file an opposition or a statement of non-opposition no less than fourteen

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(14) days prior to the hearing. See, Local Rule 230(c).

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Plaintiff failed to file her response by April 12, 2013, as required. On April 17, 2013, this

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Court issued an order requiring Plaintiff to file an opposition or statement of non-opposition to

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Defendant’s Motion for Summary Judgment no later than May 24, 2013. (Doc. 38). To date,

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Plaintiff has failed to file any response to this Court’s order.

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DISCUSSION

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

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Rules or with any order of the Court may be grounds for the 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 power

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to control their dockets and "in the exercise of that power, they may impose sanctions including,

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where appropriate . . . dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

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Cir. 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute

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an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik

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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); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.

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1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal

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

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1986) (dismissal for failure to 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 a

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court order, or failure to comply with local rules, the court must consider several factors: (1) the

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public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Thompson v Housing Auth., 782

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F.2d at 831; Henderson v. Duncan, 779 F.2d at 1423-24; Malone v. U.S. Postal Service, 833 F.2d

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at 130; Ferdik, 963 F.2d at 1260-61; Ghazali v. Moran, 46 F.3d at 53.

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In the instant case, the Court finds that the public's interest in expeditiously resolving this

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litigation and the Court's interest in managing the docket weigh in favor of dismissal. Plaintiff

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failed to respond to a dispositive motion even after this Court issued an order advising Plaintiff

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that she must do so. There is no reason to believe Plaintiff will comply or otherwise participate

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in litigating this case.

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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 action.

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

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

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dismissal discussed herein.

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Finally, a court's warning to a party that a failure to obey the court's order will result in

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dismissal satisfies the "consideration of alternatives" requirement. Ferdik v. Bonzelet, 963 F.2d

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at 1262; Malone v. U.S. Postal Service, 833 at 132-33; Henderson v. Duncan, 779 F.2d at 1424.

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Here, the Court's order expressly advised Plaintiff that if she failed to comply with this order, the

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action would be dismissed with prejudice for failure to comply with the Court’s order and failure

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to prosecute. (Doc. 38 at 2.) Thus, Plaintiff had adequate warning that dismissal would result

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from noncompliance with the Court's order.

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ORDER
Accordingly, this action is dismissed with prejudice based on Plaintiff's failure to obey

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the Court's order dated April 17, 2013, and for a failure to prosecute this action. The Clerk of the

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Court is ordered to enter judgment against Plaintiff and in favor of Defendants, County of

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Calaveras, Calaveras County Sheriff’s Department, and Gary Kuntz, Calaveras County Sheriff.

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This order terminates this action in its entirety.

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IT IS SO ORDERED.

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Dated:
6i0kij

May 31, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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