Woods v. Turpin et al

Filing 15

FINDINGS and RECOMMENDATIONS Regarding Dismissal of 6 Action for Failure to Follow Court Order; Thirty Day Objection Deadline signed by Magistrate Judge Dennis L. Beck on 1/10/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 2/18/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSIE JAMES WOODS,

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Case No. 1:13-cv-01803 LJO-DLB PC

Plaintiff,

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FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO FOLLOW COURT ORDER

v.

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SCOTT TURPIN,
THIRTY DAY OBJECTION DEADLINE

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Defendant.

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Plaintiff Jessie James Woods (“Plaintiff”) is a California state prisoner proceeding pro se in

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this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on October 15, 2013. The

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action was transferred to this Court on November 6, 2013.

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On November 7, 2013, the Court issued an order directing Plaintiff to either file an

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application to proceed in forma pauperis, or pay the filing fee, within 45 days of the date of service

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of the order. Over 45 days have passed and Plaintiff has not complied with the order or otherwise

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contacted the Court.1
Local Rule 110 provides that “failure of counsel or of a party to comply with these Local

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Rules 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, where

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Plaintiff filed a notice of change of address on December 9, 2013. The November 7, 2013,however, was not returned
as undeliverable.

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appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)

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(per curiam). 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 of

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

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

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failure to lack of prosecution and failure to comply with local rules).
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 public’s

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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk

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of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at

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1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal. This action

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has been pending since October 15, 2013, and Plaintiff has not complied with the November 7, 2013,

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order to file an application to proceed in forma pauperis, or pay the filing fee. The third factor, risk

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of 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 F.2d

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

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

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

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

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Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s November 7, 2013, order

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expressly stated: “Failure to comply with this order will result in dismissal of this action.” Thus,
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Plaintiff had adequate warning that dismissal would result from his noncompliance with the Court’s

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order.

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The Court also notes that a civil action may not proceed absent the submission of either the

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filing fee or a completed application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Based

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on Plaintiff’s failure to comply with the Court’s order, dismissal of this action is appropriate. In re

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

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Local Rule 110.

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FINDINGS AND RECOMMENDATIONS
The Court therefore recommends that this action be dismissed for Plaintiff’s failure to follow

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a Court order and failure to prosecute.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

January 10, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

9b0hied

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