Phelps v. Cabrera

Filing 5

FINDINGS and RECOMMENDATIONS Regarding Dismissal of this Action for Failure to Obey a Court Order (Doc. 1 ), Signed by Magistrate Judge Gary S. Austin on 8/4/2014. Matter submitted to District Judge Lawrence J. O'Neill. Within fourteen (14) days after being served with a copy of these Findings and Recommendations, plaintiff may file written objections with the Court. (Arellano, S.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL PHELPS,

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No. 1: 14-cv-722-LJO-GSA

Plaintiff,
v.
ELIZABETH VAN BIBBER,

FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF THIS
ACTION FOR FAILURE TO OBEY A
COURT ORDER

Defendants.

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INTRODUCTION
Plaintiff, Daniel Phelps (“Plaintiff”), is proceeding pro se and filed a complaint, along

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with an application to proceed in forma pauperis. (Docs. 1 and 2). A review of the application

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revealed that Plaintiff did not complete the application form properly. On June 11, 2014, this

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Court issued an order requiring that no later than July 7, 2014, Plaintiff file and submit a

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completed application to proceed in forma pauperis, or in the alternative, pay the $400.00 filing
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fee. To date, Plaintiff has not complied with the Court’s order.
DISCUSSION
Local Rule 11 110 provides that “a failure of counsel or of a party to comply with these

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

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

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power to control their dockets and “in the exercise of that power, they may impose sanctions

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including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829,

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831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to

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prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g.,

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Ghazali v. Moran, 46 F.3d 52, 53 54 (9th Cir. 1995) (dismissal for noncompliance with local

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rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 61 (9th Cir. 1992) (dismissal for failure to comply

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with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440 41 (9th
Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprized of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal
for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.

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1986) (dismissal for lack of prosecution and failure to comply with local rules). In determining

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

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

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

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and
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(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

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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 the Plaintiff intends 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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(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 Plaintiff to file a completed in forma pauperis

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application, or alternatively, to pay the filing fee, was clear that dismissal would result from non-

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compliance with the Court's order.

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RECOMMENDATION

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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 Honorable Lawrence J. O’Neill

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United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B).

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Within fourteen (14) days after being served with a copy, Plaintiff may file written objections

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

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and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28

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U.S.C. ' 636(b)(1)(C). Plaintiff is 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.

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1991).

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IT IS SO ORDERED.
Dated:

August 4, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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