Herrera v. Rouch

Filing 104

FINDINGS and RECOMMENDATIONS recommending that the action be Dismissed, with prejudice, for failure to obey a court order and failure to prosecute re 88 FINDINGS and RECOMMENDATIONS recommending that Defendant's Motion to Dismiss 32 be DENIED re 32 MOTION to DISMISS filed by Rouch;referred to Judge O'Neill, signed by Magistrate Judge Michael J. Seng on 01/14/2015. Objections to F&R due by 2/2/2015 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,
v.
ROUCH,

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Defendant.

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CASE NO. 1:13-cv-00289-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
OBEY COURT ORDER AND FAILURE TO
PROSECUTE
(ECF No. 103)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendant Rouch on Plaintiff’s Eighth Amendment inadequate medical care claim. (ECF

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No. 18.)

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On August 19, 2014, Defendant filed a motion for summary judgment on the

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ground that Plaintiff did not exhaust his administrative remedies. (ECF No. 81.) Plaintiff

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filed a motion for the appointment of a medical expert and appointment of counsel to

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oppose the motion. (ECF No. 84.) On December 11, 2014, the Court denied Plaintiff’s

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motion, advised Plaintiff of his rights, obligations, and methods for opposing Defendants’

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motion, and ordered Plaintiff to file an opposition to Defendant’s motion within twenty

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one days. (ECF No. 103.) Plaintiff was warned that his failure to file an opposition or

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statement of non-opposition could result in dismissal of the action for failure to

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prosecute. The twenty-one day deadline passed without Plaintiff either filing an

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opposition or statement of non-opposition, or seeking an extension of time to do so.

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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 (9th Cir. 1986). A court may dismiss an action, with

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prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure

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to comply with local rules. See, e.g., 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, 1260-

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61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

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complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure

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to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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

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

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

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

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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; Henderson, 779 F.2d at 1423-24; Malone, 833

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F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the public’s interest in expeditiously resolving this litigation

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and the Court’s interest in managing its docket weigh in favor of dismissal. The third
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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

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this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor –

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public policy favoring disposition of cases on their merits – is greatly outweighed by the

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factors in favor of dismissal discussed herein. Finally, as for the availability of lesser

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sanctions, at this stage in the proceedings there is little available which would constitute

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a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not

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paid the filing fee for this action and is likely unable to pay, making monetary sanctions

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of little use.

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Based on the foregoing, it is HEREBY RECOMMENDED that the action be
dismissed, with prejudice, for failure to obey a court order and failure to prosecute.

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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 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir.

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Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

January 14, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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