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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TERRY K. PLEASANT, 10 11 12 13 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 14 15 16 Plaintiff, Terry K. Pleasant, is a state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff’s claims arise from events which 18 occurred in 2012 and 2013 when he was a criminal pretrial detainee at the Merced County Jail in 19 Merced, California. (Id.) On January 9, 2014, the Complaint was dismissed with leave to amend 20 for failure to state a claim pursuant to 28 U.S.C. § 1915A. (Doc. 9.) Plaintiff filed a First 21 Amended Complaint, (Doc. 13), which was screened and found to be devoid of any cognizable 22 claims, resulting in dismissal of the action with prejudice on June 12, 2015. (Docs. 14, 24, 25.) 23 Plaintiff appealed the dismissal to the Ninth Circuit of Appeals (Doc. 26) who issued a 24 memorandum on September 22, 2016, which took effect via Mandate on October 17, 2016 (Docs. 25 30, 31). The Ninth Circuit affirmed the dismissal of Plaintiff’s equal protection and conspiracy 26 claims; reversed the dismissal of Plaintiff’s conditions of confinement claim; vacated the 27 dismissal of Plaintiff’s due process claims for excessive fines and for unlawful deprivation of 28 property for this Court to dismiss without prejudice; vacated dismissal of Plaintiff’s state law 1 1 claims leaving open the question of whether supplemental jurisdiction should be exercised; and 2 remanded for further proceedings. (Id.) Service of the Amended Complaint was subsequently ordered. (Doc. 35.) Defendants 3 4 responded on February 3, 2017, by filing a motion to dismiss. (Doc. 37.) Plaintiff did not file an 5 opposition or a statement of non-opposition. A second informational order issued on April 21, 6 2017, notifying Plaintiff of the requirements for an opposition and requiring him to file an 7 opposition or statement of non-opposition within 21 days of the date that order issued. (Doc. 38.) 8 Over a month lapsed without Plaintiff filing having filed either pleading. Thus, an order issued 9 directing Plaintiff, within 30 days, to show cause why the action should not be dismissed for his 10 failure to both comply with the April 21, 2017, order and to prosecute this action. (Doc. 39.) 11 Alternatively, Plaintiff was granted one last opportunity to file an opposition or statement of non- 12 opposition to Defendants’ motion to dismiss. (Id.) More than one month has lapsed without 13 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 14 15 or with any order of the Court may be grounds for the imposition by the Court of any and all 16 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 17 control their dockets and “in the exercise of that power, they may impose sanctions including, 18 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th 19 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 20 an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 21 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 22 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 23 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 24 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised 25 of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for 26 failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 27 (dismissal for failure to lack of prosecution and failure to comply with local rules). 28 // 2 In determining whether to dismiss an action for lack of prosecution, failure to obey a court 1 2 order, or failure to comply with local rules, the Court must consider several factors: (1) the 3 public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; 4 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 5 their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 6 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 7 46 F.3d at 53. The Court finds that the public’s interest in expeditiously resolving this litigation and the 8 9 Court’s interest in managing the docket weigh in favor of dismissal. The third factor, risk of 10 prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury arises 11 from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 12 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on 13 their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, 14 a Court’s warning to a party that his failure to obey the court’s order will result in dismissal 15 satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; 16 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to file 17 an opposition or a statement of non-opposition to Defendants’ motion to dismiss expressly stated: 18 “If Plaintiff fails to file an opposition or a statement of non-opposition to the motion, this action 19 may be dismissed, with prejudice, for failure to prosecute.” (Doc. 38, p. 1 (emphasis in original).) 20 The order to show cause which issued on June 1, 2017, also cautioned that this action may 21 be dismissed for Plaintiff’s failure to comply with the Court’s orders to file an opposition or a 22 statement of non-opposition and for his failure to prosecute this action. (Doc. 39.) Thus, Plaintiff 23 had more than adequate warning that dismissal may result from his noncompliance with the 24 Court’s orders. Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with 25 26 prejudice based on Plaintiff’s failure to obey the Court’s orders of April 21, 2017, (Doc. 38) and 27 June 1, 2017 (Doc. 39). 28 /// 3 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 3 twenty-one (21) days after being served with these Findings and Recommendations, the parties 4 may file written objections with the Court. The document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 6 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 7 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 10 IT IS SO ORDERED. Dated: July 14, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 .

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