Bryant v. Biter et al
Filing
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FINDINGS and RECOMMENDATIONS for Dismissal of 1 Plaintiff's Complaint for Failure to Obey a Court Order 3 , signed by Magistrate Judge Michael J. Seng on 8/20/12. Referred to Judge Ishii. Objections Due Within Fourteen Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KEVIN D. BRYANT,
1:11-cv-01975-AWI-MJS (PC)
Plaintiff,
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FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PLAINTIFF’S
COMPLAINT FOR FAILURE TO OBEY
A COURT ORDER
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v.
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(ECF No. 3)
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MARTIN D. BITER et al.,
OBJECTIONS DUE WITHIN
FOURTEEN DAYS
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Defendants.
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Plaintiff Kevin D. Bryant (“Plaintiff”) is a state prisoner proceeding pro se in this civil
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rights actions pursuant to 42 U.S.C. § 1983.
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On June 28, 2012, the Court issued an Order finding that Plaintiff’s motion to
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proceed in forma pauperis pursuant to 28 U.S.C. § 1915 should be denied because a
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review of the prior actions filed by Plaintiff revealed that Plaintiff was subject to § 1915(g)
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and was not under imminent danger of serious physical injury at the time the Complaint
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was filed. (ECF No. 3.) Plaintiff was to pay the $350.00 filing fee in full by July 30, 2012.
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(Id.) Plaintiff was advised that if he failed to pay the filing fee, his action would be
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dismissed. (Id.) July 30, 2012, has passed without Plaintiff responding to the Court’s
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Order.
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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 factors:
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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to
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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring
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disposition of cases on their merits; and (5) the availability of less drastic alternatives.
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;
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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 delay
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in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The
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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. Finally, a court’s
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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 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
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stated: “If Plaintiff fails to pay the $350.00 filing fee in full within thirty (30) days, this action
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will be dismissed, without prejudice..” (ECF No. 3.) Thus, Plaintiff had adequate warning
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that dismissal would result from his noncompliance with the Court’s Order.
Based on the foregoing, the Court RECOMMENDS that this action be DISMISSED
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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. Y1 st,
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951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
August 20, 2012
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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