Diaz v. Sherman et al

Filing 18

FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Obey a Court Order 17 and Failure to Prosecute, referred to Judge O'Neill; signed by Magistrate Judge Michael J. Seng on 07/29/14. 14-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIGUEL DIAZ,

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Plaintiff,

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CASE NO. 1:13-cv-1627-LJO-MJS (PC)

v.
STU SHERMAN, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
TO DISMISS ACTION FOR FAILURE TO
OBEY COURT ORDER AND FAILURE TO
PROSECUTE
(ECF No. 17)
FOURTEEN (14) DAY DEADLINE

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I.

PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. On January 30, 2014, Plaintiff’s

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complaint was dismissed for failure to state a claim, but he was given leave to file a first

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amended complaint. (ECF No. 10.) Plaintiff sought and was granted two extensions of

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time to file an amended complaint. (ECF Nos. 13, 14, 15, 16.)

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The second extension was granted and served on May 29, 2014, and Plaintiff had

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thirty days from that date to file his amended complaint. The deadline passed without

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Plaintiff either filing an amended pleading or seeking an extension of time to do so.

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On July 10, 2014, the Court ordered Plaintiff to show cause why the action should

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not be dismissed with prejudice for failure to obey a court order and failure to prosecute.

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(ECF No. 17.) The time for Plaintiff to respond to the order to show cause has passed

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and without any response being filed.

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II.

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

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

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

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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, failure to obey a court order, or failure

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to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-

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61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

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

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(dismissal for 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

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factors: “(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 defendants/respondents; (4) the

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availability of less drastic alternatives; and (5) the public policy favoring disposition of

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cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.2002) (citing

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.1992)).

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III.

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ANALYSIS
“The public’s interest in expeditious resolution of litigation always favors
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dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir.1999)).

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Plaintiff's complaint was dismissed for failure to state a claim. (ECF No. 10.)

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Notwithstanding successive extensions of time in which to amend (ECF Nos. 13 & 15),

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Plaintiff has failed to comply with the Court’s order that he file an amended pleading. He

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has not provided cause why his action should not be dismissed. (ECF No. 17.) In such

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circumstances, the Court cannot justify continuing to expend its scarce resources in this

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matter. Thus, both the first and second factors weigh in favor of dismissal.
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently

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prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991).

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However, “[u]nnecessary delay inherently increases the risk that witnesses’ memories

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will fade and evidence will become stale,” id. (citation omitted), and it is Plaintiff's failure

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to comply with Court orders and file an amended pleading that is causing delay.

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Therefore, the third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is

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little available to the Court which would constitute a satisfactory lesser sanction while

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protecting the Court from further unnecessary expenditure of its scarce resources.

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Plaintiff has not paid the filing fee for this action and is likely unable to pay, making

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monetary sanctions of little use, and given the early stage of these proceedings, the

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preclusion of evidence or witnesses is not available.

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Finally, because public policy favors disposition on the merits, this factor will
always weigh against dismissal. Id. at 643.

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Accordingly, this action should be dismissed with prejudice based on Plaintiff's

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failure to state a claim and failure to prosecute.

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IV.

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CONCLUSION AND RECOMMENDATIONS
It is HEREBY RECOMMENDED that this action be dismissed with prejudice

based on Plaintiff’s failure to state a claim and failure to prosecute.
These findings and recommendations are submitted to the United States District
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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any party may file written objections with the Court and serve a copy on all parties. Such

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a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within seven (7)

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days after service of the objections.

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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).

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IT IS SO ORDERED.
Dated:

July 29, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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