Shehee v. Ahlin et al

Filing 18

FINDINGS and RECOMMENDATIONS Regarding Dismissal of 11 Action signed by Magistrate Judge Dennis L. Beck on 04/22/2015. Referred to Judge O'Neill; Objections to F&R due by 5/18/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY ELL SHEHEE,
Plaintiff,

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Case No. 1:14-cv-0005-LJO-DLB
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION

v.

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TWENTY-ONE DAY DEADLINE
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PAMELA ANLIN, et al.,

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Defendants.
_____________________________________/

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Plaintiff Gregory Ell Shehee, an inmate at the Fresno County Jail proceeding pro se and in

17 forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 2, 2014.
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The Court screened the complaint on May 20, 2014, and dismissed it with leave to amend.

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Plaintiff filed a First Amended Complaint on June 11, 2014.

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On December 29, 2014, the Court dismissed Plaintiff’s First Amended Complaint for

21 failure to state a claim and granted Plaintiff a final opportunity to file an amended complaint.
22 Plaintiff was ordered to file an amended complaint within thirty (30) days.
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On January 26, 2015, Plaintiff filed a motion for appointment of counsel, stating that he

24 was “totally, completely and irrevocably blind.” ECF No. 13, at 1. The Court denied the order on
25 January 29, 2015, explaining that his disability, alone, does not make Plaintiff’s case exceptional
26 under the Ninth Circuit standards.
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On February 26, 2015, the Court updated Plaintiff’s address to the Fresno County Jail.

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2 This was done as a courtesy to Plaintiff, based on his filing in 1:12-cv-01395-AWI-JLT (HC).
3 Plaintiff did not file his address change in this action.
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Based on the updated address, the Court re-served the December 29, 2014, order on

5 Plaintiff at the Fresno County Jail on February 27, 2015.
On March 10, 2015, and March 19, 2015, Plaintiff filed “notices” with the Court in which

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7 he states that he is legally blind. He also alleges that the Fresno County Jail was hindering his
8 access to the law library and making it difficult for him to litigate his numerous actions in this
9 Court, state courts and the Ninth Circuit Court of Appeals. He also alleges that Coalinga State
10 Hospital has taken all of his legal documents.
To date, Plaintiff has not filed an amended complaint.1

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

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14 Rules or with any order of the Court may be grounds for the imposition by the Court of any and all
15 sanctions . . . within the inherent power of the Court.” “District courts have the inherent power to
16 control their dockets and in the exercise of that power, they may impose sanctions including,
17 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th
18 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute
19 an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v.
20 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.
21 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
22 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)
23 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of
24 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
25 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal
26 for failure to lack of prosecution and failure to comply with local rules).
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The Court notes that Plaintiff has numerous other actions in this Court and has continued to file documents in most,
if not all, of his pending cases.

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In determining whether to dismiss an action for lack of prosecution, failure to obey a court

2 order, or failure to comply with local rules, the court must consider several factors: (1) the public’s
3 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the
4 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
5 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.
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In the instant case, the Court finds that the public’s interest in expeditiously resolving this

9 litigation and the Court’s interest in managing the docket weigh in favor of dismissal. This action
10 has been pending since January 2, 2014, and there is no operative complaint that states any
11 cognizable claims for relief. The third factor, risk of prejudice to defendants, also weighs in favor
12 of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in
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prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth
factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed by the
factors in favor of dismissal discussed herein.
Finally, a court’s warning to a party that his failure to obey the court’s order will result in
dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at
1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s December 29, 2014,
order expressly stated that dismissal would result if Plaintiff failed to file an amended complaint in
compliance with the order. Thus, Plaintiff had adequate warning that dismissal would result from
his noncompliance with the Court’s order.
RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with
prejudice based on Plaintiff's failure to obey the Court’s order of December 29, 2014.

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These Findings and Recommendations are 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 twenty-one
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(21) days after date of service of these Findings and Recommendations, Plaintiff may file written
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1 objections with the Court. Such a document should be captioned “Objections to Magistrate
2 Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within
3 the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951
4 F.2d 1153 (9th Cir. 1991).
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6 IT IS SO ORDERED.
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Dated:

/s/ Dennis

April 22, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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