Irving v. Peter, et al.
Filing
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FINDINGS and RECOMMENDATIONS recommending that this 1 Action be Dismissed Based on Plaintiff's Failure to Obey the Court's Order of October 11, 2011 signed by Magistrate Judge Barbara A. McAuliffe on 1/9/2012. Referred to Judge Anthony W. Ishii. Objections to F&R due by 2/13/2012. (Sant Agata, S)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ARVELL JAMES IRVING,
Plaintiff,
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vs.
PAAT, et al.
1:11-cv-1417-AWI-BAM (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS CASE FOR FAILURE TO OBEY A
COURT ORDER
OBJECTIONS, IF ANY, DUE IN TWENTY
DAYS
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Defendants.
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______________________________/
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On October 11, 2011, the court issued a second order re consent or request for reassignment
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to be returned within thirty (30) days. The thirty (30)-day period has now expired, and plaintiff has
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not filed a consent or decline 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 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 all
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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to
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control their dockets and “in the exercise of that power, they may impose sanctions including, where
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appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.
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1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an
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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 v.
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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
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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 apprised
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of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal for failure
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to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)(dismissal
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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 court
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order, or failure to comply with local rules, the court must consider several factors: (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 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at
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1423-24; Malone, 833 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 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. The third
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factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of
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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air
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West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of
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cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein.
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Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal
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satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;
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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The court’s order expressly stated: “Failure
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to comply with this order will result in a recommendation that this action be dismissed." Thus,
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plaintiff had adequate warning that dismissal would result from his noncompliance with the court’s
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order.
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Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on
plaintiff's failure to obey the court’s order of October 11, 2011.
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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 Title 28 U.S.C. § 636(b)(l). Within twenty days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings
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and Recommendations." The parties are advised that failure to file objections within the specified
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time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th
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Cir. 1991).
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IT IS SO ORDERED.
Dated:
10c20k
January 9, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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