Oden v. State of California, et al.

Filing 19

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute 16 , 18 , signed by Magistrate Judge Barbara A. McAuliffe on 8/27/15: Fourteen-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DERRICK JESUS ODEN, SR.,

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Plaintiff,
v.
STATE OF CALIFORNIA, et al.,
Defendants.

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1:14-cv-00873-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM,
FAILURE TO OBEY A COURT ORDER,
AND FAILURE TO PROSECUTE
(ECF Nos. 16, 18)
FOURTEEN-DAY DEADLINE

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Plaintiff Derrick Jesus Oden, Sr., (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action on June 9, 2014.

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On June 1, 2015, the Court dismissed Plaintiff’s second amended complaint with leave to

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amend within thirty days. On July 15, 2015, Plaintiff was granted an additional thirty days to

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amend his complaint. (ECF No. 18.) Plaintiff was warned that if he failed to file a third

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amended complaint in compliance with the Court’s order, this action would be dismissed for

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failure to obey a court order and failure to state a claim. (ECF No. 16.) The deadline for

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Plaintiff to file his third amended complaint has passed, and he has not complied with or

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otherwise responded to the Court’s order.

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran,

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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); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th

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Cir. 1987) (dismissal for failure to comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors: (1)

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the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988).

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The Court finds that the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. This action has been

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pending since June 2014. Plaintiff has made no attempt to contact the Court or otherwise

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comply with the Court’s most recent orders. The Court cannot hold this case in abeyance

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awaiting such compliance by Plaintiff. The third factor, risk of prejudice to defendant, also

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weighs in favor of dismissal, since a presumption of injury arises from the occurrence of

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

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1976). The 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 discussed herein. Finally, the court’s warning to

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a party that failure to obey the court’s order will result in dismissal satisfies the “considerations

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of the alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-133; Henderson,

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779 F.2d at 1424. The Court’s June 1, 2015 order granting Plaintiff leave to amend his
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complaint expressly stated, “If Plaintiff fails to file a third amended complaint in compliance

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with this order, this action will be dismissed for failure to obey a court order and for failure to

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state a claim.” (ECF No. 16, p. 8.) Thus, Plaintiff had adequate warning that dismissal could

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result from his noncompliance with the Court’s order.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed based on

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Plaintiff’s failure to comply with the Court’s June 1, 2015 order, for failure to state a claim, and

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for failure to prosecute.

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These findings and recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these findings and recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 27, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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