Bryson v. Samuels

Filing 3

FINDINGS and RECOMMENDATIONS Recommending Dismissal of this Case, signed by Magistrate Judge Barbara A. McAuliffe on 1/8/15. Referred to Judge O'Neill; 15-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 CASE NO. 1:14-cv-0180 LJO-BAM WILLIAM MACK BRYSON, JR., Plaintiff, v. HONORABLE CHARLES SAMUELS, JR., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THIS CASE Defendant. 16 17 18 On February 10, 2014, Plaintiff William Mack Bryson, proceeding pro se, filed this suit 19 pursuant to the civil enforcement provision of the Freedom of Information Act. On October 2, 20 2014, Plaintiff was ordered to fill out an in forma pauperis (“IFP”) application, or pay the $400.00 21 filing fee, within forty-five (45) days, or on or before November 16, 2014. To date, Plaintiff has 22 not filed an IFP application, or paid the filing fee as ordered. 23 24 DISCUSSION Local Rule 11-110 provides that “a failure of counsel or of a party to comply with these 25 26 Local Rules or with any order of the Court may be grounds for the imposition by the Court of any 27 and all sanctions . . . within the inherent power of the Court. District courts have the inherent 28 power to control their dockets and in the exercise of that power, they may impose sanctions 1 1 including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 2 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to 3 prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., 4 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local 5 6 rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply 7 with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th 8 Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 9 apprized of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 10 11 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). In determining 12 13 14 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 15 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 16 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 17 (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260- 18 19 61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. In the instant case, the Court finds that the public’s interest in expeditiously resolving this 20 21 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because this 22 case has been pending in this Court since February 10, 2014, and Plaintiff has not paid the filing 23 fee or filed an IFP application. The third factor, risk of prejudice to defendants, also weighs in 24 favor of dismissal because a presumption of injury arises from any unreasonable delay in 25 prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 26 27 factor, public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that his or her failure to obey 28 2 1 the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. 2 Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s 3 order was clear that dismissal would result for failure to comply with the Court’s order. (Doc. 2). 4 RECOMMENDATIONS 5 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 6 7 Plaintiff’s failure to comply with a court order. 8 This Findings and Recommendation is submitted to the United States District Court 9 Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B). Within fifteen (15) days 10 11 after being served with a copy, Plaintiff may file written objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 12 13 14 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time 15 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 16 1991). 17 IT IS SO ORDERED. 18 Dated: 19 /s/ Barbara January 8, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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