Wilds v. Holland et al

Filing 28

FINDINGS And RECOMMENDATION Recommending Dismissal Of Action Without Prejudice (ECF No. 26 ), signed by Magistrate Judge Stanley A. Boone on 10/28/2014. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/13/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NICHOLAS REID WILDS,

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Plaintiff,
v.
K. HOLLAND, et al.,
Defendants.

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Case No.: 1:12-cv-01950-LJO-SAB (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION
WITHOUT PREJUDICE
[ECF No. 26]

Plaintiff Nicholas Reid Wilds is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On September 23, 2014, Plaintiff was ordered to show cause within thirty days why the action

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should not be dismissed for failure to prosecute. The thirty day time frame has expired and Plaintiff

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has failed to respond to the Court’s order.

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I.

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DISCUSSION

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Local Rule 110 provides that a “failure of counsel or of a party to comply with these Local

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

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

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control their dockets and Ain the exercise of that power, they may impose sanctions including, where

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appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).
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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure

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to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54

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(9th Cir. 1995) (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 an order requiring amendment of

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

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comply with court order).
In determining whether to dismiss an action for lack of prosecution, the Court must consider

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several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to

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manage its docket; (3) the risk of prejudice to the Respondents; (4) the public policy favoring

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disposition of cases on their merits; and, (5) the availability of less drastic alternatives. Henderson v.

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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). The

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Court finds that the public’s interest in expeditiously resolving this litigation and the court’s interest in

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managing the docket weigh in favor of dismissal, as this case has been pending since November 30,

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2012. The Court cannot hold this case in abeyance indefinitely awaiting compliance by Petitioner.

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The third factor, risk of prejudice to Respondents, 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 action.

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring

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disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal

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discussed herein. Finally, given Petitioner’s noncompliance with the Court’s order, no lesser sanction

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is feasible. The Court will not, and cannot, hold the case in abeyance based upon Plaintiff’s failure to

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prosecute or notify the Court of a change in address.

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II.

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RECOMMENDATION
Based on the foregoing, Plaintiff has failed to prosecute this action and failed to comply with

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the Local Rules. As set forth above, the factors set forth by the Ninth Circuit weigh in favor of

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dismissal of the matter. No lesser sanction is feasible given the Court’s inability to communicate with

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Plaintiff.

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Accordingly, IT IS HEREBY RECOMMENDED:

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1. This action be DISMISSED, without prejudice; and

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2. The Clerk of Court be DIRECTED to close this action.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen (14)

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days after being served with these Findings and Recommendation, the parties may file written

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objections with the Court. The document should be captioned AObjections to Magistrate Judge=s

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Findings and Recommendation.@ The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court=s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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October 28, 2014
UNITED STATES MAGISTRATE JUDGE

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