Vincent Alvarez v. Dickinson et al

Filing 8

FINDINGS and RECOMMENDATIONS recommending that this Matter be DISMISSED WITHOUT PREJUDICE re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Michael J. Seng on 8/2/2012. 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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VINCENT ALVAREZ,

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CASE NO.

1:12-cv-00712-AWI-MJS (PC)

FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF ACTION WITHOUT
PREJUDICE FOR FAILURE TO COMPLY
WITH COURT ORDER

Plaintiff,

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v.
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KATHLEEN DICKINSON, et al.,

(ECF NO. 6)

Defendants.

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FOURTEEN (14) DAY DEADLINE
/

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Plaintiff Vincent Alvarez was one of five state prisoners proceeding pro se and in

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forma pauperis as Plaintiffs in an underlying civil rights action filed pursuant to 42

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U.S.C. § 1983.1 (Compl., ECF No. 1.) On May 3, 2012, the Court ordered Plaintiff’s

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claims severed from the other Plaintiffs’ claims and ordered that, on or before June 4,

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2012, Plaintiff file an amended complaint and either pay the filing fee in full or submit a
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1

Jorge Ornelas, et al., v. Kathleen Dickinson, et al., E.D. Cal. Case No. 1:1 12-cv-0499-MJS

(PC).

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completed application to proceed in forma pauperis . (Order Severing, ECF No. 2.) The

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June 4th deadline passed without Plaintiff having filed an amended complaint, paid the

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filing fee in full, submitted a completed application to proceed in forma pauperis, or filed

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a request for an extension of time to do so.

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The Court then ordered Plaintiff to show cause by July 16, 2012 why his case

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should not be dismissed for failure to comply with the Court’s orders. (Order to Show

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Cause, ECF No. 6.) Plaintiff was advised that failure to meet this deadline would result

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in a recommendation for dismissal of the action. The July 16, 2012 deadline has

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passed without Plaintiff filing any response to the Order to Show Cause.

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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, 831-32 (9th Cir. 1986). A court may dismiss an action

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based on a party’s failure to prosecute an action, failure to obey a court order, or failure
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to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (dismissal for failure to comply with court order); Malone v. U.S.

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

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court order).

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In determining whether to dismiss an action for lack of prosecution, failure to
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obey 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; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at

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

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dismissal. In these respects, the Court has a vast caseload before it and can not

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indulge Plaintiff’s disregard of its orders and rules. The third factor, risk of prejudice to
the Defendants, also weighs in favor of dismissal, since a presumption of injury arises

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from delay in resolving an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.
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1976). The fourth factor -- public policy favoring disposition of cases on their merits -- is

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greatly outweighed by the factors in favor of dismissal discussed herein. Given

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Plaintiff’s non-responsiveness to the Court’s earlier orders and his pro se status, “less

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drastic alternatives” other than those taken to date (i.e., repeated orders to Plaintiff to

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comply) do not exist and the ultimate sanction of dismissal is warranted. Malone, 833

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F.2d at 132-33.
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Plaintiff has failed to comply with the Court’s orders and rules. He has not filed

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an application to proceed in forma pauperis or paid the filing fee. He has not filed an

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operative pleading. He has not responded to the Court’s order to show cause. No lesser

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sanction than dismissal is appropriate.

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Accordingly, it is RECOMMENDED that this matter be DISMISSED WITHOUT
PREJUDICE by the District Judge. These findings and recommendations are submitted

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to the United States District Judge assigned to the case, pursuant to the provisions of

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Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these

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Findings and Recommendations, any party may file written objections with the Court

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and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall

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be served and filed within ten (10) days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to

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appeal the District 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:

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ci4d6

August 2, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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