Borders v. Correia et al

Filing 8

FINDINGS and RECOMMENDATIONS Recommending Dismissal of this Action (re Complaint 1 filed by Jack Borders), Signed by Magistrate Judge Barbara A. McAuliffe on 6/10/2014. Case referred to District Judge Lawrence J. O'Neill. Objections to Findings and Recommendations, if any, are due within fifteen (15) days. (Arellano, S.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JACK BORDERS,

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Plaintiff,
v.

No. 1: 14-cv-00254-LJO-BAM
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF THIS
ACTION

MARIAN SOARES CORREIA and
STEVE CORREIA,
Defendants.
Plaintiff Jack Borders (“Plaintiff”), proceeding pro se and in forma pauperis, filed this

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civil action on February 26, 2014.

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defendants violated plaintiff’s rights when defendants accessed Ms. Whipple’s medical records

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and used them in a guardianship proceeding for Ms. Whipple’s children. On April 28, 2014, the

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undersigned issued an order dismissing Plaintiff’s complaint with leave to file a first amended

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complaint. (Doc. 8). Plaintiff was ordered to serve the amended complaint within thirty (30)

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days of the service of the order. Well over thirty days have passed and Plaintiff has failed to

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comply with this Court’s order.

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While unclear, Plaintiff’s complaint appears to allege

DISCUSSION

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Local Rule 110 provides that “a 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

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all sanctions . . . within the inherent power of the Court. District courts have the inherent power
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to control their dockets and “in the exercise of that power, they may impose sanctions including,

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

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Cir. 1986). 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

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to comply with 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). In determining whether

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to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply

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with local rules, the court must consider several factors: (1) the public’s interest in expeditious

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

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61;
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
litigation and the Court’s interest in managing the docket weigh in favor of dismissal because
there is no indication that Plaintiff intends to prosecute this action. The third factor, risk of
prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises
from any unreasonable delay in 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. 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, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779
F.2d at 1424. The Court’s order requiring Plaintiff to file an amended complaint was clear that
dismissal would result from non-compliance with the Court’s order. (Doc. 6, pg. 8).

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RECOMMENDATION

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Based on the above, IT IS HEREBY RECOMMENDED that this action be

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DISMISSED for Plaintiff’s failure to comply with a court order and that the Clerk of the Court

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be directed to close this action.

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These findings and recommendations are submitted to the United States District Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B). Within fifteen (15) days after the date of this Finding and

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Recommendation, the parties may file written objections with the Court. The document should

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be captioned “Objections to Magistrate Judge’s Finding and Recommendation.” The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 10, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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