Gollubier v. Ybarra, et al.

Filing 13

ORDER DISMISSING Action, Without Prejudice, For Failure To Comply With A Court Order (ECF No. 11 ), signed by Magistrate Judge Stanley A. Boone on 7/22/2014. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DERECK GOLLUBIER,

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Plaintiff,
v.
GILBERT YBARRA, et al.,
Defendants.

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Case No.: 1:13-cv-01090-SAB (PC)
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO COMPLY
WITH A COURT ORDER
[ECF No. 11]

Plaintiff Dereck Gollubier is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of

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the United States Magistrate Judge on July 31, 2013. Local Rule 302.

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On March 7, 2014, the Court screened Plaintiff’s complaint and found that he stated a

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cognizable excessive force and assault and battery claims against Defendants Gilbert Ybarra and K.

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Oliver. The Court granted Plaintiff the option of filing an amended complaint or proceeding on the

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claimS found to be cognizable. On April 7, 2014, Plaintiff notified the Court of his intent to proceed

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only on the claims found to be cognizable.

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On April 14, 2014, the Court ordered Plaintiff to complete and submit a Notice of Submission

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of Documents, provide one completed Summons for each defendant, one USM-285 form for each

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defendant, and two copies of the complaint within thirty days of the date of service. (ECF No. 11.)

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Plaintiff failed to respond and/or comply with the Court’s April 14, 2014, order.
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On June 9, 2014, the undersigned issued an order to show, within fifteen days, why the action

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should not be dismissed for failure to comply with a court order. The fifteen day time period has

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expired and Plaintiff has failed to file a response.

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The Local Rules, corresponding with Rule 11 of the Federal Rules of Civil Procedure provide,

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“Failure of counsel or of a party to comply with any order of the Court may be grounds for the

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imposition by the Court of any and all sanctions … within the inherent power of the Court. Local

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Rule 110. “District courts have inherent power to control their dockets, “ and in exercising that power,

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a court may impose sanctions including dismissal of an action. Thompson v. Housing Authority of

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Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, based on a party’s

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failure to prosecute an action or failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-1261 (9th Cir. 1991) (dismissal for failure to comply with an order requiring

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

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for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

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(dismissal for failure to prosecute and to comply with local rules).

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In determining whether to dismiss an action for failure to comply with a pretrial order, the

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Court must weigh: (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 favoring

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

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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006)

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(quotation marks and citation omitted). These factors guide a court in deciding what to do and are not

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conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 (citation

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omitted).

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In re

Here, the public’s interest in expeditiously resolving this litigation and the Court’s interest in

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managing the docket weigh in favor of dismissal. Judges in the Eastern District of California carry

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one of the heaviest caseloads in the nation, and this Court cannot, and will not hold, this action in

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abeyance given Plaintiff’s failure to comply with the deadline set forth by the Court and failure to

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prosecute. The risk of prejudice to the defendants also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecution of an action.

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See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).
Plaintiff was warned that the action would be dismissed based on his failure to comply with a

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court order. (ECF Nos. 11, 12.) Thus, Plaintiff had adequate warning that dismissal would result from

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his noncompliance with the Court’s orders, and his failure to prosecute the action. The warning that

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the failure to comply will result in dismissal satisfies the requirement that the Court consider less

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drastic measures. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Given Plaintiff’s failure to

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comply, the policy favoring disposition of cases on their merits is outweighed by the factors in favor

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of dismissal.

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Based on the foregoing,

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IT IS HEREBY ORDERED the instant action is dismissed, without prejudice, for failure to

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comply with a court order.

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IT IS SO ORDERED.

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Dated:

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July 22, 2014
UNITED STATES MAGISTRATE JUDGE

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