Shehee v. Hill, et al.

Filing 15

FINDINGS And RECOMMENDATION To Dismiss Action For Failure To Comply With A Court Order (Fourteen Day Deadline) (Doc. 1 ), signed by Magistrate Judge Dennis L. Beck on 1/16/2015. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 2/3/2015. (Fahrney, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

GREGORY ELL SHEHEE,
10

Plaintiff,

11
12
13
14
15

vs.
LAURIE HILL, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:13-CV-01936 AWI DLB PC
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
COMPLY WITH A COURT ORDER
(FOURTEEN DAY DEADLINE)

Plaintiff Gregory Ell Shehee (“Plaintiff”) is a civil detainee proceeding pro se and in

16
17
18
19

forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action
on November 21, 2013.
On October 20, 2014, the Court screened the initial complaint and determined that

20

Plaintiff failed to state a claim upon which relief may be granted under § 1983. The Court

21

dismissed the complaint and granted Plaintiff thirty (30) days to file an amended complaint.

22

Plaintiff was forewarned that failure to file an amended complaint within the allotted time would

23

result in the action being dismissed with prejudice for failure to state a claim. Over thirty (30)

24

days have passed and Plaintiff has failed to comply with the Court’s order.

25
26
27

Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
Rules or with any order of the Court may be grounds for the imposition by the Court of any and
all sanctions . . . within the inherent power of the Court.” “District courts have the inherent

28
1

1
2
3
4

power to control their dockets and in the exercise of that power, they may impose sanctions
including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d
829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s
failure to prosecute an action, failure to obey a court order, or failure to comply with local rules.

5

See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with
6
7
8
9

local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to
comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 144041 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to

10

keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.

11

1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

12

1424 (9th Cir. 1986) (dismissal for failure to lack of prosecution and failure to comply with local

13

rules).

14
15
16
17
18

In determining whether to dismiss an action for lack of prosecution, failure to obey a
court order, or failure to comply with local rules, the court must consider several factors: (1) the
public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on
their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

19

Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,
20
21
22
23

46 F.3d at 53.
In the instant case, the Court finds that the public’s interest in expeditiously resolving this
litigation and the Court’s interest in managing the docket weigh in favor of dismissal. The third

24

factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of

25

injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v.

26

Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring

27

disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal

28
2

1

discussed herein. Finally, a court’s warning to a party that his failure to obey the court’s order

2

will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik v.

3
4

Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s
order expressly stated that dismissal would result if Plaintiff failed to file an amended complaint

5

within the allotted time. Thus, Plaintiff had adequate warning that dismissal would result from
6
7

his noncompliance with the Court’s order.
RECOMMENDATION

8
9
10

Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with
prejudice based on Plaintiff's failure to obey the Court’s order of October 20, 2014.

11

These Findings and Recommendations are submitted to the United States District Judge

12

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

13

(14) days after date of service of these Findings and Recommendations, Plaintiff may file written

14

objections with the Court. Such a document should be captioned “Objections to Magistrate

15

Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections

16
17

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).

18
19

IT IS SO ORDERED.

20
21

Dated:

/s/ Dennis

January 16, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
3