Carter v. City Of Fresno

Filing 17

FINDINGS and RECOMMENDATION to Dismiss Action for Failure to Follow Court Order, signed by Magistrate Judge Michael J. Seng on 12/27/13. Referred to Judge Ishii; 15-Day Deadline. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:13-cv-00290 AWI MJS HC
LEWIS CARTER, JR.,

FINDINGS AND RECOMMENDATION TO
Plaintiff, DISMISS ACTION FOR FAILURE TO
FOLLOW COURT ORDER

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v.
CITY OF FRESNO,
Defendant.

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Plaintiff Lewis Carter, Jr. (“Plaintiff”) is proceeding pro se in this action pursuant to

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title 42 U.S.C. § 1983, alleging violation of his First and Fourth through Fourteenth

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Amendment rights under the United States Constitution, and violation of article I,

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sections 2, 5, 6, 7, 10, 14 and 21 of the California Constitution.

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Defendant filed a motion to dismiss the complaint on March 5, 2013, and the

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Court granted the motion on July 16, 2013. (ECF Nos. 6, 13.) The Court gave Plaintiff

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leave to file an amended complaint on or before August 16, 2013. (ECF No. 13.) Plaintiff

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did not file an amended complaint.

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On October 25, 2013, the Court issued an order to show cause why the case

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should not be dismissed. Plaintiff was ordered to respond or file an amended complaint

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before November 25, 2013, and he was forewarned that failure to respond would result

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in dismissal of the complaint.
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Plaintiff has not responded to the order to show cause. He has not filed an

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amended complaint.

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I.

DISCUSSION

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Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with

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

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any 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 an action, failure to obey a court order,

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or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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

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

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

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(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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rules). 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. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at

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130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.

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In the instant case, the Court finds that the public's interest in expeditiously

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resolving this litigation and the Court's interest in managing the docket weigh in favor of

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dismissal because this case has been pending in this Court since February 27, 2013,
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and it does not appear that Plaintiff has any intent to cure the deficiencies in the

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complaint. The third factor, risk of prejudice to defendants, also weighs in favor of

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dismissal because a presumption of injury arises from any unreasonable delay in

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prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The

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fourth factor, public policy favoring disposition of cases on their merits, is greatly

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outweighed by the factors in favor of dismissal. Finally, a court's warning to a party that

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his failure to obey the court's order will result in dismissal satisfies the "consideration of

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alternatives" requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33;

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Henderson, 779 F.2d at 1424. Here, the Court's order to show cause was clear that

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dismissal would result from non-compliance with the order. (See ECF No. 15 ["Failure to

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respond by this deadline will result in dismissal of this action."].)

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II.

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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED

for Plaintiff's failure to comply with a court order.

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This Findings and Recommendation is submitted to the Honorable Anthony W.

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Ishii, United States District Court Judge, pursuant to the provisions of Title 28 of the

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United States Code section 636 (b)(1)(B). Within fifteen (15) days after being served with

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a copy, any party may file written objections with the court and serve a copy on all

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parties. Such a document should be captioned "Objections to Magistrate Judge's

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Findings and Recommendation." The Court will then review the Magistrate Judge's ruling

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pursuant to Title 28 of the United States Code section 636(b)(1)(C). Finally, Plaintiff is

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advised that failure to file objections within the specified time may waive the right to

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appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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December 27, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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