Pleasant v. County of Merced et al

Filing 40

FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Prosecute and Obey a Court Order signed by Magistrate Judge Sheila K. Oberto on 07/14/2017. Referred to Judge Ishii. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TERRY K. PLEASANT,

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Plaintiff,
v.
COUNTY OF MERCED, et al.,
Defendants.

Case No. 1:13-cv-00805-AWI-SKO (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS CASE FOR FAILURE TO
PROSECUTE AND OBEY A COURT
ORDER
(Docs. 37, 38, 39)
TWENTY-ONE (21) DAY DEADLINE

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Plaintiff, Terry K. Pleasant, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff’s claims arise from events which

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occurred in 2012 and 2013 when he was a criminal pretrial detainee at the Merced County Jail in

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Merced, California. (Id.) On January 9, 2014, the Complaint was dismissed with leave to amend

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for failure to state a claim pursuant to 28 U.S.C. § 1915A. (Doc. 9.) Plaintiff filed a First

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Amended Complaint, (Doc. 13), which was screened and found to be devoid of any cognizable

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claims, resulting in dismissal of the action with prejudice on June 12, 2015. (Docs. 14, 24, 25.)

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Plaintiff appealed the dismissal to the Ninth Circuit of Appeals (Doc. 26) who issued a

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memorandum on September 22, 2016, which took effect via Mandate on October 17, 2016 (Docs.

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30, 31). The Ninth Circuit affirmed the dismissal of Plaintiff’s equal protection and conspiracy

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claims; reversed the dismissal of Plaintiff’s conditions of confinement claim; vacated the

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dismissal of Plaintiff’s due process claims for excessive fines and for unlawful deprivation of

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property for this Court to dismiss without prejudice; vacated dismissal of Plaintiff’s state law
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claims leaving open the question of whether supplemental jurisdiction should be exercised; and

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remanded for further proceedings. (Id.)
Service of the Amended Complaint was subsequently ordered. (Doc. 35.) Defendants

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responded on February 3, 2017, by filing a motion to dismiss. (Doc. 37.) Plaintiff did not file an

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opposition or a statement of non-opposition. A second informational order issued on April 21,

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2017, notifying Plaintiff of the requirements for an opposition and requiring him to file an

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opposition or statement of non-opposition within 21 days of the date that order issued. (Doc. 38.)

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Over a month lapsed without Plaintiff filing having filed either pleading. Thus, an order issued

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directing Plaintiff, within 30 days, to show cause why the action should not be dismissed for his

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failure to both comply with the April 21, 2017, order and to prosecute this action. (Doc. 39.)

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Alternatively, Plaintiff was granted one last opportunity to file an opposition or statement of non-

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opposition to Defendants’ motion to dismiss. (Id.) More than one month has lapsed without

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Plaintiff having complied with either the April 21, 2017 order or the order to show cause.
Local Rule 110 provides that “failure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for the imposition by the Court of any and all

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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to

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control their dockets and “in the exercise of that power, they may impose sanctions including,

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where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute

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an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring 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 apprised

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

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failure to 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 a court

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order, or failure to comply with local rules, the Court must consider several factors: (1) the

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public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,

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46 F.3d at 53.
The Court finds that the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. The third factor, risk of

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prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury arises

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from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on

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their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally,

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a Court’s warning to a party that his failure to obey the court’s order will result in dismissal

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satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;

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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to file

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an opposition or a statement of non-opposition to Defendants’ motion to dismiss expressly stated:

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“If Plaintiff fails to file an opposition or a statement of non-opposition to the motion, this action

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may be dismissed, with prejudice, for failure to prosecute.” (Doc. 38, p. 1 (emphasis in original).)

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The order to show cause which issued on June 1, 2017, also cautioned that this action may

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be dismissed for Plaintiff’s failure to comply with the Court’s orders to file an opposition or a

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statement of non-opposition and for his failure to prosecute this action. (Doc. 39.) Thus, Plaintiff

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had more than adequate warning that dismissal may result from his noncompliance with the

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Court’s orders.
Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with

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prejudice based on Plaintiff’s failure to obey the Court’s orders of April 21, 2017, (Doc. 38) and

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June 1, 2017 (Doc. 39).

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These Findings and Recommendations will be 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). Within

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twenty-one (21) days after being served with these Findings and Recommendations, the parties

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

July 14, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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