Gonzales v. Tate et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 5/18/2015 recommending that 1 Prisoner Civil Rights Complaint be dismissed. Referred to Judge Anthony W. Ishii; Objections to F&R due by 6/10/2015. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOE ANTHONY GONZALES,
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Plaintiff,
v.
Case No. 1:14-cv-01181 AWI DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO FOLLOW COURT
ORDER AND FAILURE TO PROSECUTE
H. TATE, et al.,
THIRTY-DAY DEADLINE
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Defendants.
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Plaintiff Joe Anthony Gonzales (“Plaintiff”) is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action. Plaintiff filed this action on July 29, 2014.
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On February 12, 2015, the Court ordered Plaintiff to return service documents within thirty
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(30) days. Plaintiff did not submit the documents within the specified time period. As a result, the
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Court issued an order to show cause why the action should not be dismissed on March 30, 2015.
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Plaintiff failed to respond to the order to show cause or otherwise contact the Court.
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DISCUSSION
Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
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Rules or with any order of the Court may be grounds for the imposition by the Court of any and all
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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to
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control their dockets and “[i]n the exercise of that power they may impose sanctions including,
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where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).
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A 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, 46
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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963
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F.2d 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) (dismissal for
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failure to comply with local rule requiring pro se plaintiffs to keep courtapprised of address); Malone
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v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with
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court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of
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prosecution and failure to comply with local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey a court
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order, or failure to comply with local rules, the court must consider several factors: (1) the public’s
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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
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of 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. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at
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1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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. This case has
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been pending since July 29, 2014, but Plaintiff has not returned service documents to initiate service
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of process. In fact, Plaintiff has not communicated with this Court since he filed his action in July
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2014.
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The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a
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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy
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favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor of
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dismissal discussed herein.
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Finally, a court’s warning to a party that her failure to obey the court’s order will result in
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dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262;
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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s March 30, 2015, order to show
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cause expressly stated: “Failure to respond to this order will result in dismissal of this action.”
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Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance with the
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Court’s order.
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RECOMMENDATION
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Accordingly, the Court HEREBY RECOMMENDS this action be dismissed, without
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prejudice, for failure to obey the Court’s orders and failure to prosecute.
These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20)
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within
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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
/s/ Dennis
May 18, 2015
L. Beck
UNITED STATES MAGISTRATE JUDGE
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