Scott v. McAfee

Filing 11

FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey a Court Order 10 (OBJECTIONS DUE WITHIN FOURTEEN DAYS), signed by Magistrate Judge Michael J. Seng on 7/23/13. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL SCOTT,

1:13-cv-00639-AWI-MJS (PC)

Plaintiff,

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v.

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FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE FOR FAILURE TO
OBEY A COURT ORDER

McAFEE

ECF No. 10
OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Defendant.
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_____________________________/
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Plaintiff Michael Scott (“Plaintiff”) is a state prisoner proceeding pro se in this civil
rights action pursuant to 42 U.S.C. § 1983.

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The Court, on June 28, 2013, ordered Plaintiff to file a signed complaint or show

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cause why his case should not be dismissed for failure to comply with a court order. (ECF

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No. 10.) Plaintiff was to show cause by July 16, 2013. (Id.) Plaintiff has failed to respond

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to the order.

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

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

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of any and all sanctions . . . within the inherent power of the Court.” District courts have
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the 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 Cir.

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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

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

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(dismissal for failure to 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 factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage

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

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

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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

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In the instant case, the court finds that the public’s interest in expeditiously resolving

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this litigation and the court’s interest in managing the docket weigh in favor of dismissal.

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The third 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 an

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

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policy favoring disposition of cases on their merits -- is greatly outweighed by the factors

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in favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure
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to obey the court’s order will result in dismissal satisfies the “consideration of alternatives”

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requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson,

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779 F.2d at 1424. The Court’s order expressly stated:“Failure to meet this deadline will

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result in dismissal of this action.” (ECF No. 10.) Thus, Plaintiff had adequate warning that

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dismissal would result from his noncompliance with the Court’s order.
Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed

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based on Plaintiff's failure to obey the Court’s June 28, 2013 order.

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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 Title 28 U.S.C. § 636(b)(l).

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Within fourteen (14) days after being served with these findings and recommendations,

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plaintiff may file written objections with the court. Such a document should be captioned

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"Objections to Magistrate Judge's Findings and Recommendations." The parties are

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

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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:
ci4d6

July 23, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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