Gary Fisher v. Arresting Agent et al

Filing 17

FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Follow Court Order, signed by Magistrate Judge Michael J. Seng on 6/20/2014, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 Case No. 1:14-cv-00644 LJO MJS (HC) GARY FRANCIS FISHER, FINDINGS AND RECOMMENDATION TO Plaintiff, DISMISS ACTION FOR FAILURE TO FOLLOW COURT ORDER 12 v. 13 14 ARRESTING AGENT, et al., Defendants. 15 16 17 On March 11, 2014, Petitioner filed a petition for writ of habeas corpus. On May 18 12, 2014, the Court dismissed the petition without prejudice to filing an amended 19 petition. (ECF No. 13.) Petitioner was provided thirty (30) days to file an amended 20 petition, and was forewarned that failure to file an amended petition would result in the 21 dismissal of the petition. (Id.) Petitioner did not file an amended petition. 22 I. DISCUSSION 23 Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with 24 these Rules or with any order of the Court may be grounds for imposition by the Court of 25 any and all sanctions . . . within the inherent power of the Court." District courts have the 26 inherent power to control their dockets and "in the exercise of that power, they may 27 impose sanctions including, where appropriate . . . dismissal of a case." Thompson v. 28 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 1 1 prejudice, based on a party's failure to prosecute an action, failure to obey a court order, 2 or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 3 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 4 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 5 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 6 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 7 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 8 (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 9 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local 10 rules). In determining whether to dismiss an action for lack of prosecution, failure to obey 11 a court order, or failure to comply with local rules, the court must consider several 12 factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need 13 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 14 favoring disposition of cases on their merits; and (5) the availability of less drastic 15 alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 16 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 17 In the instant case, the Court finds that the public's interest in expeditiously 18 resolving this litigation and the Court's interest in managing the docket weigh in favor of 19 dismissal because it does not appear that Plaintiff has made a good faith effort to 20 prosecute this matter. The third factor, risk of prejudice to defendants, also weighs in 21 favor of dismissal because a presumption of injury arises from any unreasonable delay 22 in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The 23 fourth factor, public policy favoring disposition of cases on their merits, is greatly 24 outweighed by the factors in favor of dismissal. Finally, a court's warning to a party that 25 his failure to obey the court's order will result in dismissal satisfies the "consideration of 26 alternatives" requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; 27 Henderson, 779 F.2d at 1424. Here, the Court's order was clear that dismissal would 28 result from non-compliance with the order. (See ECF No. 7 ["[F]ailure to follow this order 2 1 will result in dismissal of the petition pursuant to Local Rule 110."].) 2 II. 3 4 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for Plaintiff's failure to comply with a court order. 5 This Findings and Recommendation is submitted to the assigned United States 6 District Court Judge, pursuant to the provisions of Title 28 of the United States Code 7 section 636 (b)(1)(B). Within thirty (30) days after being served with a copy, any party 8 may file written objections with the court and serve a copy on all parties. Such a 9 document should be captioned "Objections to Magistrate Judge's Findings and 10 Recommendation." The Court will then review the Magistrate Judge's ruling pursuant to 11 Title 28 of the United States Code section 636(b)(1)(C). Finally, Plaintiff is advised that 12 failure to file objections within the specified time may waive the right to appeal the 13 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 17 IT IS SO ORDERED. Dated: June 20, 2014 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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