Woodis v. Olive et al
Filing
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FINDINGS And RECOMMENDATIONS For Dismissal Of Plaintiff's Action For Failure To Prosecute (ECF No. 11 ), Objections Due Within Fourteen Days, signed by Magistrate Judge Michael J. Seng on 6/20/2013. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/8/2013. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DENO EUGENE WOODIS,
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Plaintiff,
v.
Case No.: 1:12-cv-1091-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS FOR
DISMISSAL OF PLAINTIFF’S ACTION FOR
FAILURE TO PROSECUTE
(ECF No. 11)
PAM OLIVE, et al.,
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Defendants.
OBJECTIONS DUE WITHIN FOURTEEN
DAYS
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Plaintiff Deno Eugene Woodis (“Plaintiff”) is a civil detainee proceeding pro se in this
civil rights action pursuant to 42 U.S.C. § 1983.
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The Court, on March 19, 2013, ordered Plaintiff to either file an amended complaint or
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show cause why his case should not be dismissed for failure to comply with a court order
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and failure to state claim. (ECF No. 11.) Plaintiff failed to do either or otherwise respond.
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On April 3, 2013, the Court’s order to show cause was returned by the United States
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Postal Service as undeliverable to Plaintiff. Over 63 days have passed and Plaintiff has not
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provided the Court with a new address or otherwise responded.
Pursuant to Local Rule 183(b), a party appearing in propria persona is required to
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keep the Court apprised of his or her current address at all times.
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Local Rule 183(b)
provides, in pertinent part:
If mail directed to a plaintiff in propria persona by the Clerk is returned by the
U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing
parties within sixty-three (63) days thereafter of a current address, the Court may
dismiss the action without prejudice for failure to prosecute.
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In the instant case, over 63 days have passed since Plaintiff's mail was returned, and he has
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not notified the Court of a current address.
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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 and
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all sanctions . . . within the inherent power of the Court.” District courts have the inherent
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power to control their dockets and “in the exercise of that power, they may impose sanctions
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including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d
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829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s
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failure to prosecute an action, failure to obey a court order, or failure to comply with local
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rules.
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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)
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(dismissal for failure to comply with an order requiring amendment of a complaint); Carey v.
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King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule
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requiring pro se plaintiffs to keep court apprised of address); Malone v. United States Postal
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Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order);
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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution
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and failure to comply with local rules).
See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
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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)
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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
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cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782
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F.2d at 831; Henderson, 779 F.2d at 1423-24; 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 resolving
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this litigation and the Court’s interest in managing its docket weigh in favor of dismissal. The
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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
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action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public
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policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in
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favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure to
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obey the court’s order will result in dismissal satisfies the “consideration of alternatives”
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requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 21 779 F.2d at
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1424.
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dismissal of this action.” (ECF No. 11.) Thus, Plaintiff had adequate warning that dismissal
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would result from his noncompliance with the Court’s Order.
The Court’s order expressly stated: “Failure to meet this deadline will result in
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Based on the foregoing, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), the
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Court RECOMMENDS that this action be HEREBY DISMISSED, with prejudice, based on
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Plaintiff’s failure to state a claim upon which relief may be granted under § 1983 and failure
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to obey the Court’s March 19, 2012, order (ECF No. 11). This dismissal is subject to the
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“three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090,
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1098-1099 (9th Cir. 2011).
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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). Within
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fourteen (14) days after being served with these Findings and Recommendations, any party
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may file written objections with the Court and serve a copy on all parties. Such a document
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should be captioned "Objections to Magistrate Judge's Findings and Recommendations."
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The parties are advised that failure to file objections within the specified time may waive the
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right to appeal the District Court's order. Martinez v. Y1 st, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
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June 20, 2013
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:
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