Berrios v. Bondoc et al

Filing 24

FINDINGS and RECOMMENDATIONS that this 10 Action be Dismissed for Failure to Obey a Court Order; Objections Due within Fourteen Days signed by Magistrate Judge Michael J. Seng on 8/28/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 9/15/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARVIN BERRIOS,

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Plaintiff,
v.
J. BONDOC, et al.,
Defendants.

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CASE NO. 1:11-cv-01435-LJO-MJS
FINDINGS AND RECOMMENDATIONS
THAT THIS ACTION BE DISMISSED FOR
FAILURE TO OBEY A COURT ORDER
(ECF Nos. 21 and 22)
OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Plaintiff Marvin Berrios, a state prisoner proceeding pro se and in forma pauperis,

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filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 26, 2011. (ECF No.

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1.) The action proceeds on Plaintiff’s First Amended Complaint (ECF No. 10) against

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Defendant J. Bondoc for deliberate indifference to a serious medical need in violation of

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the Eighth amendment. (ECF No. 11.)

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The Courts’ Second Scheduling Order directed the parties to file pretrial

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statements. (ECF No. 19.) Plaintiff was to file and serve his before June 10, 2014. (Id.)

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That deadline passed without Plaintiff filing a statement or requesting an extension of

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time to do so. On June 24, 2014, the Court issued an order requiring Plaintiff to show

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cause why his case should not be dismissed for failure to obey a court order. (ECF No.

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21) During a telephonic pretrial conference the Court extended Plaintiff’s deadline to
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respond to the order to show cause to August 14, 2014. (ECF No. 22.) That deadline

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also has passed without a response from Plaintiff.

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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 an action, failure to obey a court order,

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or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)

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(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)

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(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 lack of prosecution and failure to comply with local

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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,

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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

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resolving this litigation and the Court’s interest in managing its docket weigh in favor of

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dismissal.

The third factor, risk of prejudice to defendants, also weighs in favor of
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dismissal, since a presumption of injury arises from the occurrence of unreasonable

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delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

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The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly

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outweighed by the factors in favor of dismissal discussed herein.

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warning to a party that his failure to obey the court’s order will result in dismissal satisfies

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the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at

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132-33; Henderson, 779 F.2d at 1424. The Court’s June 24, 2014 order expressly

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stated that failure to respond would result in dismissal. (ECF No. 21.) Thus, Plaintiff had

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adequate warning that dismissal would result from his noncompliance with the Court’s

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Finally, a court’s

order.
Based on the foregoing, the Court HEREBY 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. Ylst,

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951 F.2d 1153, 1156 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

August 28, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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