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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 DERRICK JESUS ODEN, SR., 10 11 12 13 Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) ) ) ) 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 16 17 Plaintiff Derrick Jesus Oden, Sr., (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 19 action on June 9, 2014. 20 On June 1, 2015, the Court dismissed Plaintiff’s second amended complaint with leave to 21 amend within thirty days. On July 15, 2015, Plaintiff was granted an additional thirty days to 22 amend his complaint. (ECF No. 18.) Plaintiff was warned that if he failed to file a third 23 amended complaint in compliance with the Court’s order, this action would be dismissed for 24 failure to obey a court order and failure to state a claim. (ECF No. 16.) The deadline for 25 Plaintiff to file his third amended complaint has passed, and he has not complied with or 26 otherwise responded to the Court’s order. 27 28 1 1 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 2 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 3 within the inherent power of the Court.” District courts have the inherent power to control their 4 dockets and “[i]n the exercise of that power they may impose sanctions including, where 5 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 6 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 7 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 8 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 9 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 10 requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th 11 Cir. 1987) (dismissal for failure to comply with court order). 12 In determining whether to dismiss an action, the Court must consider several factors: (1) 13 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 14 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 15 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 16 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 17 The Court finds that the public’s interest in expeditiously resolving this litigation and the 18 Court’s interest in managing the docket weigh in favor of dismissal. This action has been 19 pending since June 2014. Plaintiff has made no attempt to contact the Court or otherwise 20 comply with the Court’s most recent orders. The Court cannot hold this case in abeyance 21 awaiting such compliance by Plaintiff. The third factor, risk of prejudice to defendant, also 22 weighs in favor of dismissal, since a presumption of injury arises from the occurrence of 23 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 24 1976). The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly 25 outweighed by the factors in favor of dismissal discussed herein. Finally, the court’s warning to 26 a party that failure to obey the court’s order will result in dismissal satisfies the “considerations 27 of the alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-133; Henderson, 28 779 F.2d at 1424. The Court’s June 1, 2015 order granting Plaintiff leave to amend his 2 1 complaint expressly stated, “If Plaintiff fails to file a third amended complaint in compliance 2 with this order, this action will be dismissed for failure to obey a court order and for failure to 3 state a claim.” (ECF No. 16, p. 8.) Thus, Plaintiff had adequate warning that dismissal could 4 result from his noncompliance with the Court’s order. 5 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed based on 6 Plaintiff’s failure to comply with the Court’s June 1, 2015 order, for failure to state a claim, and 7 for failure to prosecute. 8 9 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 10 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 11 file written objections with the Court. The document should be captioned “Objections to 12 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 objections within the specified time may result in the waiver of the “right to challenge the 14 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 15 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 18 IT IS SO ORDERED. Dated: /s/ Barbara August 27, 2015 19 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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