Manago v. Gonzalez et al

Filing 10

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED Without Prejudice re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Jennifer L. Thurston on 4/5/2012. Referred to Judge Ishii. 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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STEWART MANAGO,

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Plaintiff,

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CASE NO. 1:11-cv-02003-JLT PC
FINDINGS AND RECOMMENDATIONS
THAT THE ACTION BE DISMISSED FOR
FAILURE TO PAY FILING FEE AND
PROSECUTE THIS CASE

v.
F. GONZALEZ, et al.,

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Defendants.

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/

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Plaintiff Stewart Manago, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983. On January 5, 2012, Plaintiff filed a motion to proceed in forma

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pauperis. (Doc. 5.) On March 12, 2012, the Court denied Plaintiff’s motion to proceed in forma

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pauperis and provided him 14 days within which to pay the filing fee. (Doc. 9) Nevertheless,

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Plaintiff has failed to do so.

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I.

Discussion and Analysis

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“District courts have inherent power to control their dockets,” and in exercising that power,

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a court may impose sanctions including dismissal of an action. Thompson v. Housing Authority of

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Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based

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on a party’s failure to prosecute an action or failure to obey a court order, or failure to comply with

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local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995) (dismissal for failure to
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comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for

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failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service,

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833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson

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v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply

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with local rules).

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In determining whether to dismiss an action for failure to prosecute, failure to obey a court

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order, or failure to comply with the Local Rules, the Court must consider several factors, including:

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“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

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

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on their merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24;

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see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the

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defendants also weighs in favor of dismissal, since a presumption of injury arises from the

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occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 F.2d

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522, 524 (9th Cir. 1976). The Court will not, and cannot, hold the case in abeyance based upon

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Plaintiff’s failure to pay the filing fee and prosecute this action. Further, the policy favoring

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disposition of cases on their merits is outweighed by the factors in favor of dismissal.

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On March 12, 2011, the Court warned “Plaintiff SHALL pay the filing fee within 14 days

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of the date of service of this order or the matter SHALL be dismissed.” (Doc. 9 at 2) Thus, Plaintiff

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

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and this satisfies the requirement that the Court consider less drastic measures than dismissal of the

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action. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Moreover, no lesser sanction is

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feasible given the Court’s inability to communicate with Plaintiff.

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IV.

Findings and Recommendations

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Plaintiff has failed to prosecute his case, comply with the Court’s orders, and follow the

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requirements of the Local Rules in this action. As set forth above, the factors set forth by the Ninth

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Circuit weigh in favor of dismissal of the matter.
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Accordingly, IT IS HEREBY RECOMMENDED:

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This action be DISMISSED WITHOUT PREJUDICE; and

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The Clerk of Court be directed to close this action because this order terminates the

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action in its entirety.

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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 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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fourteen days after being served with these Findings and Recommendations, any party may file

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written objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst,

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

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IT IS SO ORDERED.

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Dated: April 5, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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