Paramore v. Ruiz

Filing 33

FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Obey Court 32 Order and Failure to Prosecute signed by Magistrate Judge Michael J. Seng on 03/03/2015. Referred to Judge O'Neill; Objections to F&R due by 3/23/2015.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY PARAMORE,

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Plaintiff,

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v.
J. RUIZ,
Defendant.

CASE NO. 1:12-cv-0255-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
OBEY COURT ORDER AND FAILURE TO
PROSECUTE
(ECF No. 32)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this

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civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendant Ruiz on Plaintiff’s Eighth Amendment excessive force claim.

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Defendant filed a motion for summary judgment on December 15, 2014, alleging

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that Plaintiff failed to exhaust his administrative remedies prior to bringing suit. (ECF No.

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31.) Plaintiff did not file an opposition or statement of non-opposition as required under

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Local Rule 230(l). Accordingly, on January 26, 2015, the Court advised Plaintiff of his

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rights, obligations, and methods for opposing Defendants’ motion, and afforded Plaintiff

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an additional twenty-one days to file an opposition or statement of non-opposition. (ECF

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No. 32.) Plaintiff was warned that his failure to file an opposition or statement of non-

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opposition could result in dismissal of the action for failure to prosecute.
The twenty-one day deadline passed without Plaintiff either filing an opposition or
statement of non-opposition, or seeking an extension of time to do so.

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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 default or dismissal.” Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based

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on a party’s failure to prosecute, 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 (9th Cir. 1995) (dismissal for

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992) (dismissal for failure to comply with an order requiring amendment of a complaint);

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply

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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.

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U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with

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a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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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

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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, 833

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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 public’s interest in expeditiously resolving this litigation

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and the Court’s interest in managing its 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
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presumption of injury arises from the occurrence of unreasonable delay in prosecuting

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this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor –

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public policy favoring disposition of cases on their merits – is greatly outweighed by the

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factors in favor of dismissal discussed herein. Finally, as for the availability of lesser

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sanctions, at this stage in the proceedings there is little available which would constitute

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a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not

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paid the filing fee for this action and is likely unable to pay, making monetary sanctions

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of little use.

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Based on the foregoing, it is HEREBY RECOMMENDED that the action be
dismissed, without prejudice, for failure to obey a court order and failure to prosecute.

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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 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 3, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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