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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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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

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v.

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ARRESTING AGENT, et al.,
Defendants.

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On March 11, 2014, Petitioner filed a petition for writ of habeas corpus. On May

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12, 2014, the Court dismissed the petition without prejudice to filing an amended

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petition. (ECF No. 13.) Petitioner was provided thirty (30) days to file an amended

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petition, and was forewarned that failure to file an amended petition would result in the

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dismissal of the petition. (Id.) Petitioner did not file an amended petition.

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I.

DISCUSSION

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Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with

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these Rules or with any order of the Court may be grounds for imposition by the Court of

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any and all sanctions . . . within the inherent power of the Court." District courts have the

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inherent power to control their dockets and "in the exercise of that power, they may

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impose sanctions including, where appropriate . . . dismissal of a case." Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with
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prejudice, based on a party's failure to prosecute an action, failure to obey a court order,

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or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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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

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

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(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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rules). In determining whether to dismiss an action for lack of prosecution, failure to obey

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a court order, or failure to comply with local rules, the court must consider several

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factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need

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to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at

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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

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resolving this litigation and the Court's interest in managing the docket weigh in favor of

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dismissal because it does not appear that Plaintiff has made a good faith effort to

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prosecute this matter. The third factor, risk of prejudice to defendants, also weighs in

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favor of dismissal because a presumption of injury arises from any unreasonable delay

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in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The

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fourth factor, public policy favoring disposition of cases on their merits, is greatly

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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 F.2d at 132-33;

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Henderson, 779 F.2d at 1424. Here, the Court's order was clear that dismissal would

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result from non-compliance with the order. (See ECF No. 7 ["[F]ailure to follow this order
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will result in dismissal of the petition pursuant to Local Rule 110."].)

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II.

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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED

for Plaintiff's failure to comply with a court order.

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This Findings and Recommendation is submitted to the assigned United States

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District Court Judge, pursuant to the provisions of Title 28 of the United States Code

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section 636 (b)(1)(B). Within thirty (30) days after being served with a copy, any party

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may file written objections with the court and serve a copy on all parties. Such a

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document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendation." The Court will then review the Magistrate Judge's ruling pursuant to

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Title 28 of the United States Code section 636(b)(1)(C). Finally, Plaintiff is advised that

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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:

June 20, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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