Rodriguez v. California Department of Corrections & Rehabilitation

Filing 13

FINDINGS and RECOMMENDATIONS that this 1 Action be Dismissed for Failure to Prosecute and Failure to Obey a Court Order signed by Magistrate Judge Gary S. Austin on 10/15/2013. Referred to Judge Ishii; Objections to F&R due by 11/18/2013.(Flores, E)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 Case No.1:13 cv 00777 AWI GSA PC JOSE A. RODRIGUEZ, 11 Plaintiff, 12 FINDINGS AND RECOMMENDATION THAT THIS ACTION BE DISMISSED FOR FAILURE TO PROSECUTE AND FAILURE TO OBEY A COURT ORDER vs. 13 CDCR, 14 Defendant 15 OBJECTIONS DUE IN THIRTY DAYS 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action . The matter was 18 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 19 20 Rule 302. 21 On September 5, 2013, an order was entered, directing Plaintiff to return a consent form 22 to the Court, indicating whether he intends to consent to magistrate judge jurisdiction. Plaintiff 23 was specifically cautioned that his failure to comply would result in dismissal for failure to obey 24 a court order. Plaintiff has not filed a response to the September 5, 2013, order. 25 26 27 28 Local Rule 110 provides that “failure of counsel or of a party to comply with these Local Rules or with any order of the Court may be grounds for the imposition by the Court of any and 1 1 all sanctions . . . within the inherent power of the Court.” District courts have the inherent power 2 to control their dockets and “in the exercise of that power, they may impose sanctions including, 3 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 f.2d 829, 831 (9th 4 5 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 6 an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 7 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance with local rule); Ferdik v. 8 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)(dismissal for failure to comply with an order 9 requiring amendment of complaint); Carey v.King, 856 F.2d 1439, 1440-41 (9th Cir. 10 11 1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 12 apprised of address(; Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal 13 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 14 1986)(dismissal for lack of prosecution and failure to comply with local rules). 15 In determining whether to dismiss an action for lack of prosecution, failure to obey a 16 17 court order, or failure to comply with local rules, the Court must consider several factors: (1) the 18 public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its docket; 19 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 20 their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 21 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 22 23 46 F.3d at 53. 24 Here, the Court finds that the public’s interest in expeditiously resolving this litigation 25 and the Court’s interest in managing the docket weigh in favor of dismissal. The third factor, 26 risk of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury 27 arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 28 2 1 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of cases 2 on the merits – is greatly outweighed by the factors in favor of dismissal discussed herein. 3 Finally, a court’s warning to a party that his failure to obey the court’s order will result in 4 5 6 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. 7 8 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for Plaintiff’s failure to obey a court order. 9 These findings and recommendations are submitted to the United States District Judge 10 11 assigned to the case, pursuant to the provisions of 28 U.S. C. § 636(b)(1)(B). Within thirty days 12 after being served with these findings and recommendations, plaintiff may file written objections 13 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 15 specified time waives all objections to the judge’s findings of fact. See Turner v. Duncan, 158 16 17 18 F.3d 449, 455 (9th Cir. 1988). Failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 22 23 IT IS SO ORDERED. 24 25 26 Dated: October 15, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 27 28 3

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