Silveira v. Six Unknown Names Agents Or Mr. President Of The United States Barack Obama

Filing 3

FINDINGS and RECOMMENDATIONS for Dismissal of Plaintiff's Action, signed by Magistrate Judge Michael J. Seng on 5/10/12. Referred to Judge O'Neill; Fourteen Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM RENE SILVEIRA,

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Plaintiff,

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v.
SIX UNKNOWN NAMES AGENTS, et
al.,

1:12-cv-0419-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PLAINTIFF’S
ACTION
(ECF No. 2)
FOURTEEN DAY DEADLINE

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Defendants.
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_______________________________/
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Plaintiff William Rene Silveira (“Plaintiff”) is a prisoner proceeding pro se in a civil
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rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
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Narcotics, 403 U.S. 388 (1971).
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On April 10, 2012, the Court ordered Plaintiff’s Complaint to be stricken from the
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record because it lacked Plaintiff’s signature and directed Plaintiff to file a signed
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complaint within fourteen days from service of the Order. (ECF No. 2.) Plaintiff was
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informed that failure to comply with the Order would result in dismissal of the action. (Id.)
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Plaintiff was to respond by April 24, 2012. (Id.) April 24, 2012, has passed without a
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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 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 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, 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 Court finds that the public’s interest in expeditiously

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

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dismissal. The third factor, risk of prejudice to the defendant, 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: “The failure to comply with this Order will result in dismissal of this action.” (Order,
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ECF No. 2.) Thus, Plaintiff had adequate warning that dismissal would result from his

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noncompliance with the Court’s Order.

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Accordingly, it is RECOMMENDED that in the event that Plaintiff does not file a

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signed complaint within fourteen (14) days of entry of this Order, this matter be

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DISMISSED by the District Judge.

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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 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 ten days

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after service of the objections. The parties are advised that failure to file objections within

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the specified time may waive the right to appeal the District Court's order. Martinez v.

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

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IT IS SO ORDERED.

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Dated:
ci4d6

May 10, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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