Freeman v. Martin et al

Filing 11

FINDINGS and RECOMMENDATION That This Action be Dismissed for Failure to Prosecute, signed by Magistrate Judge Gary S. Austin on 9/29/2014, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 1:14 cv 00575 LJO GSA PC

DEMETRIUS FREEMAN,

FINDINGS AND RECOMMENDATION
THAT THIS ACTION BE DISMISSED FOR
FAILURE TO PROSECUTE

vs.

C/ A. MARTIN, et al.,
Defendants

OBJECTIONS DUE IN THIRTY DAYS

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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil rights
action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff has
consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
On June 11, 2014, an order was sent to Plaintiff along with a form to consent or decline
to proceed before a magistrate judge. Plaintiff was directed to complete and return the form to
the Court within thirty days. Plaintiff has not complied with the Court’s order.
Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
Rules or with any other 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
power to control their dockets and “in the exercise of that power, they may impose sanction
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.
See, e.g. Ghazali v. Moran, 46 F.3d 52, 54-54 (9th Cir. 1995)(dismissal for noncompliance with

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local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)(dismissal for failure to
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comply with an order requiring amendment of complaint); Carey v. Kingt, 856 F.2d 1439, 1440-

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41 (9th Cir. 1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs to

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

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1987)(dismissal 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 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 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;
Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,
46 F.3d at 53.
Here, the Court finds that the public’s interest in expeditiously resolving this litigation

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and the court’s interest in managing the docket weigh in favor of dismissal. The third factor, risk

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

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from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of cases on

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their merits – is greatly outweighed by the factors on favor of dismissal discussed herein. Finally,

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a court’s warning to a party that his failure to obey the court’s order will result in dismissal

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satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833

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F.2d at 132-33; Henderson, 779 F.2d at 1424.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure
to prosecute and to obey a court order.
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 28 U.S. C. § 636(b)(1)(B). Within thirty days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the Court. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
specified time waives all objections to the judge’s findings of fact. See Turner v. Duncan, 158

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F.3d 449, 455 (9th Cir. 1988). Failure to file objections within the specified time may waive the

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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:

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/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE

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September 29, 2014