Nogueras v. Lopez et al

Filing 55

FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey a Court Order signed by Magistrate Judge Sheila K. Oberto on 05/05/2016. Referred to Judge Drozd; Objections to F&R due by 6/9/2016.(Flores, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

NOGUERAS,

10
11
12
13

Case No. 1:12-cv-01365-DAD-SKO (PC)
Plaintiff,

v.
LOPEZ, et al.,

FINDINGS AND RECOMMENDATION TO
DISMISS CASE FOR FAILURE TO OBEY A
COURT ORDER
(Docs. 50, 52)

Defendants.

THIRTY (30) DAY DEADLINE

14
15
16
17
18
19
20
21
22
23
24

Plaintiff, Eugenio Luis Nogueras, a former state prisoner proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 21, 2012. Plaintiff
is proceeding on a claim for damages against Defendant Dileo for violating his rights under the
Eighth Amendment of the United States Constitution.
On December 8, 2015, Defendant filed a motion to compel Plaintiff to respond to
discovery. (Doc. 50.) Plaintiff did not file an opposition or statement of non-opposition as
required by Local Rule 230(l). On April 6, 2016, an order issued requiring Plaintiff to file an
opposition or statement of non-opposition to Defendant’s motion to compel within twenty-one
days. (Doc. 52.) On August 6, 2015, the Second Information Order issued notifying Plaintiff of
the requirements to oppose a motion for summary judgment and that an opposition must be filed

25
within twenty-one days of the date Defendants' filed their motion for summary judgment. (Doc.
26
18.) More than twenty-one days have passed and Plaintiff has failed to file an opposition or a
27

statement of non-opposition, or to respond in any way Defendant’s motion to compel discovery

28
1

1
2

responses or to this Court's order of April 6, 2016.
Local Rule 110 provides that "failure of counsel or of a party to comply with these Rules

3

or with any order of the Court may be grounds for the imposition by the Court of any and all

4

sanctions . . . within the inherent power of the Court." District courts have the inherent power to

5

control their dockets and "in the exercise of that power, they may impose sanctions including,

6

where appropriate . . . dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

7

Cir. 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute

8

an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.

9

Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

10

Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

11

requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)

12

(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of

13

address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure

14

to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

15

(dismissal for failure to lack of prosecution and failure to comply with local rules).

16

In determining whether to dismiss an action for lack of prosecution, failure to obey a court

17

order, or failure to comply with local rules, the Court must consider several factors: (1) the

18

public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket;

19

(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

20

their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

21

Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,

22

46 F.3d at 53.

23

The Court finds that the public's interest in expeditiously resolving this litigation and the

24

Court's interest in managing the docket weigh in favor of dismissal. The third factor, risk of

25

prejudice to defendant, also weighs in favor of dismissal, since a presumption of injury arises

26

from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542

27

F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on

28

their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally,
2

1

a Court's warning to a party that the failure to obey the court's order will result in dismissal

2

satisfies the "consideration of alternatives" requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;

3

Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court's order requiring Plaintiff to file

4

an opposition or a statement of non-opposition to Defendants' motion to compel Plaintiff to

5

respond to discovery expressly stated in bold that "Plaintiff is warned that the failure to comply

6

with this order will result dismissal of this action, with prejudice, for failure to prosecute." Thus,

7

Plaintiff had adequate warning that dismissal may result from his noncompliance with the Court's

8

order.

9
10

Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on
Plaintiff's failure to obey the Court's order of April 6, 2016, (Doc. 52).
These Findings and Recommendations will be submitted to the United States District

11
12

Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty

13

(30) days after being served with these Findings and Recommendations, the parties may file

14

written objections with the Court. The document should be captioned “Objections to Magistrate

15

Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

16

within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

17

F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

18
19

IT IS SO ORDERED.

20

Dated:

21

May 5, 2016

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
3