Harring v. Martens

Filing 10

FINDINGS and RECOMMENDATIONS recommending that that this action be DISMISSED for Plaintiffs' failure to comply with a Court Order and that the Clerk of the Court be DIRECTED to Close this action re 1 Prisoner Civil Rights Complaint filed by David Harring ; referred to Judge Ishii,signed by Magistrate Judge Barbara A. McAuliffe on 6/26/14. Objections to F&R due by 7/14/2014 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1: 14-cv-0310-AWI-BAM

DAVID HARRING, KENNETH
HARRING,
Plaintiff,

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v.

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FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF THIS
ACTION

CHRISTOPHER MARTENS,
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Defendants.
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Plaintiffs David Harring and Kenneth Harring1 (“Plaintiffs”), appearing pro se and in

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forma pauperis, filed the instant complaint on November 27, 2013, seeking monetary damages

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and other relief. The Court screened Plaintiffs’ Complaint on April 16, 2014, and found that it

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failed to state a cognizable claim, but gave Plaintiffs an opportunity to file an amended complaint

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on or before May 19, 2014. (Doc. 7). Plaintiff David Harring filed a motion for an extension of

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time on May 19, 2014 (Doc. 8), which the Court granted (Doc. 9). Plaintiffs were to file their

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amended complaint by June 24, 2014. (Doc. 9). 2 To date, Plaintiffs have not filed their amended

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The Court notes that Kenneth Harring is not a party to this action. He has not submitted an application to
proceed in forma pauperis or paid his filing fee, nor has he signed the complaint in this matter. Further, as a nonattorney, David Harring may not represent Kenneth Harring. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th
Cir. 2008) (privilege to represent oneself pro se provided by 28 U.S.C. § 1654 is personal to litigant and does not
extend to other parties/entities); Johns v. Cnty of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (non-attorney may
appear pro se on own behalf, but has no authority to appear as an attorney for others than himself). Thus, any claims
alleged by Kenneth Harring should be DISMISSED.
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In the order granting David Harring’s request for an extension of time, the Court ordered Plaintiff Kenneth

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complaint or an additional request for an extension of time to do so.
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 apprized

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

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failure 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

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availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61;

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Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.

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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 because

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there is no indication that Plaintiffs intend to prosecute this action. The third factor, risk of

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prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises

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from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524

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Harring to file a separate complaint along with the filing fee or an application to proceed in forma pauperis. (Doc. 9).

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(9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is

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greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that

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his failure to obey the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779

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F.2d at 1424. The Court’s order requiring Plaintiffs to file an amended complaint was clear that

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dismissal would result from non-compliance with the Court’s order. (Doc. 7, pg. 7).

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RECOMMENDATION
Based on the above, IT IS HEREBY RECOMMENDED that this action be
DISMISSED for Plaintiffs’ failure to comply with a court order and that the Clerk of the Court
be directed to close this action.
These findings and recommendations are submitted to the United States District Judge
pursuant to 28 U.S.C. § 636(b)(1)(B). Within fifteen (15) days after the date of this Finding and
Recommendation, the parties may file written objections with the Court. The document should
be captioned “Objections to Magistrate Judge’s Finding and Recommendation.” The parties are
advised that failure to file objections 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).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

June 26, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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