Haack v. California Department of Corrections and Rehabilitation, et al.

Filing 14

FINDINGS and RECOMMENDATIONS to Dismiss This Action for a Failure to Obey a Court Order signed by Magistrate Judge Gary S. Austin on 4/4/2012. Objections to F&R's due within fifteen (15) days of service.(Bradley, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN RALPH HAACK,
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Plaintiff,
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v.
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CALIFORNIA DEPARTMENT OF
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CORRECTIONS & REHABILITATION, et )
al.,
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Defendants.
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_____________________________________ )

1:12-cv-00098 LJO GSA
FINDINGS AND RECOMMENDATIONS
TO DISMISS THIS ACTION FOR A
FAILURE TO OBEY A COURT ORDER

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PROCEDURAL BACKGROUND

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Defendant California Department of Corrections and Rehabilitation (“CDCR”) removed

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this action from the Tulare County Superior Court to this Court on January 20, 2012. (Doc. 1.)

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Defendant’s motion to dismiss (Doc. 6) was granted on February 21, 2012, by District

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Judge Lawrence J. O’Neill and judgment was entered in Defendant’s favor against Plaintiff

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Steven Ralph Haack. (Doc. 7 & 8.)

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Thereafter, the undersigned issued a minute order converting the Initial Scheduling

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Conference to a Status Conference to be held March 27, 2012. In the minute order, Plaintiff’s

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counsel was expressly directed to be prepared to “address the status of service of the remaining

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defendants” at that conference. (See Doc. 10.) However, Plaintiff’s counsel failed to appear on

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Plaintiff’s behalf as directed. (See Doc. 11.)

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Accordingly, on March 27, 2012, the undersigned issued an Order to Show Cause

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wherein Plaintiff was ordered to file a written response “on or before April 2, 2012, to show

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cause, if any, why this action should not be dismissed for a failure to follow a Court order.”

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(Doc. 12, emphasis in original.)

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Nevertheless, Plaintiff has failed to file a written response as directed.
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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has failed to comply with two orders to date: to attend the status conference and to file a written

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response to the Order to Show Cause. There is no reason to believe Plaintiff will begin to

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comply or otherwise participate in this matter.

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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). In fact, Plaintiff originally filed his

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complaint in the Tulare County Superior Court on or about September 22, 2011, naming

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Defendant CDCR, as well as Kathleen Allison and the Substance Abuse Treatment Facility and

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State Prison as defendants. However, there is no evidence that either Ms. Allison or the

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Substance Abuse Treatment Facility were ever served with the complaint, despite it having been

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filed nearly 200 days ago. The fourth factor -- public policy favoring disposition of cases on their

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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

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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 stated: "Failure to respond to this Order to Show Cause within

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the time specified may also result in dismissal of this action." (Doc. 12 at 3.) Thus, Plaintiff had

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adequate warning that dismissal would result from noncompliance with the Court's order.

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based

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on Plaintiff's failure to obey the Court's order of March 27, 2012, and a failure to prosecute the

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action.

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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 of the United States Code section

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636(b)(l). Within fifteen (15) days after being served with these findings and recommendations,

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Plaintiff may file written objections with the Court. Such a document should be captioned

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"Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

April 4, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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