Mannings v. Palermo et al

Filing 44

FINDINGS and RECOMMENDATIONS that this Action be Dismissed for Failure to Prosecute and to Obey a Court Order, signed by Magistrate Judge Barbara A. McAuliffe on 9/8/15. Referred to Judge Ishii; 30-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEVON DION MANNINGS, Plaintiff, 12 13 14 Case No. 1:12-cv-02038-AWI-BAM-PC FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR FAILURE TO PROSECUTE AND TO OBEY A COURT ORDER v. C/O PALERMO, et al., OBJECTIONS DUE IN THIRTY DAYS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. 18 § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 19 636(1)(B) and Local Rule 302. 20 On July 20, 2015, an order was entered, directing Plaintiff to file an opposition or 21 statement of non-opposition to Defendants’ motion for summary judgment. Plaintiff was 22 specifically cautioned that his failure to comply would result in a recommendation that this 23 action be dismissal for failure to prosecute pursuant to Local Rule 110. To date, Plaintiff has not 24 filed an opposition or statement of non-opposition to Defendants’ motion for summary judgment. 25 Local Rule 110 provides that “failure of counsel or of a party to comply with these Local 26 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 27 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 28 control their dockets and “in the exercise of that power, they may impose sanctions including, 1 1 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th 2 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 3 an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 4 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance with local rule); Ferdik v. 5 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)(dismissal for failure to comply with an order 6 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 7 1998)(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 8 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal 9 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 10 1986)(dismissal for lack of prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for lack of prosecution, failure to obey a 12 court order, or failure to comply with local rules, the Court must consider several factors: (1) the 13 public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 14 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 15 their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 16 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 17 46 F.3d at 53. 18 Here, the Court finds that the public’s interest in expeditiously resolving this litigation 19 and the Court’s interest in managing the docket weigh in favor of dismissal. The third factor, 20 risk of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury 21 arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air 22 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition 23 of cases on the merits – is greatly outweighed by the factors in favor of dismissal discussed 24 herein. Finally, a court’s warning to a party that a failure to obey a court order will result in 25 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 26 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. 27 Accordingly, IT IS RECOMMENDED that this action be dismissed pursuant to Local 28 Rule 110 for Plaintiff’s failure to obey a court order. 2 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within thirty days 3 after being served with these findings and recommendations, Plaintiff may file written objections 4 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 6 specified time waives all objections to the judge’s findings of fact. See Turner v. Duncan 158 7 F.3d 449, 455 (9th Cir. 1988). Failure to file objections within the specified time may waive the 8 right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 IT IS SO ORDERED. Dated: /s/ Barbara September 8, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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