Bergman v. County of Kern

Filing 3

FINDINGS and RECOMMENDATION Dismissing the Action for Plaintiff's Failure to Prosecute and Failure to Comply with the Court's Orders; ORDER Directing the Clerk of the Court to Assign a District Court Judge to the Matter, signed by Magistrate Judge Jennifer L. Thurston on 12/22/14. Case assigned to District Court Judge Lawrence J. O'Neill. New Case Number: 1:14-cv-01734-LJO-JLT. Fourteen-Day Objection Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHAD RANDALL BERGMAN,
Plaintiff,

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v.

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COUNTY OF KERN, et al.,

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Defendants.

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Case No.: 1:14-cv-01734 --- JLT
FINDINGS & RECOMMENDATION DISMISSING
THE ACTION FOR PLAINTIFF’S FAILURE TO
PROSECUTE AND FAILURE TO COMPLY WITH
THE COURT’S ORDERS
ORDER DIRECTING THE CLERK OF THE
COURT TO ASSIGN A DISTRICT COURT
JUDGE TO THE MATTER

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Chad Bergaman is proceeding pro se and in forma pauperis in this action in which he claims he

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suffered various violations of his rights during an arrest. (Doc. 1) After screening the complaint, on

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November 18, 2014, the Court dismissed the complaint with leave to amend. (Doc. 2) However,

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Plaintiff has failed to file an amended complaint or take any other action to prosecute the matter.

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Accordingly, the Court recommends the action be DISMISSED without prejudice.

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I.

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Background
Plaintiff initiated this action by filing a complaint on November 6, 2014. (Doc. 1.) The Court

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screened the complaint and determined that it failed to state a claim. (Doc. 2) Thus, it dismissed the

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complaint but granted Plaintiff 21 days to file an amended complaint. Id. In doing so, the Court

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warned Plaintiff, “If Plaintiff fails to comply with this order, the action will be dismissed for failure to

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prosecute and failure to obey the Court’s order.” Id. at 17, emphasis in the original.

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has failed to comply with or otherwise respond to the Court’s orders.

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II.

To date, Plaintiff

Failure to Prosecute and Obey the Court’s Orders
The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a

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party to comply 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.” LR 110. “District courts have inherent

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power to control their dockets,” and in exercising that power, a court may impose sanctions including

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dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.

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1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute an action

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

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of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

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comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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failure to prosecute and to comply with local rules).

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III.

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Discussion and Analysis
To determine whether to dismiss an action for failure to prosecute and failure to obey a Court

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order, the Court must consider several factors, including: “(1) the public’s interest in expeditious

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

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability

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of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61;

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Thomspon, 782 F.2d at 831.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s

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interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors

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dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in

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managing their dockets without being subject to noncompliant litigants). This Court cannot and will

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not hold this action in abeyance given Plaintiff’s failure to comply with the deadlines set forth by the

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Court and failure to prosecute. The risk of prejudice to the defendant also weighs in favor of dismissal,
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since a presumption of injury arises from the occurrence of unreasonable delay in prosecution of an

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action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

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Notably, Plaintiff was warned if he failed to comply with the Court’s order, “the action will be

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dismissed for failure to prosecute and failure to obey the Court’s order.” (Doc. 2 at 17, emphasis in the

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original). Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance

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with the Court’s orders and his failure to prosecute the action. Further, these warnings satisfy the

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requirement that the Court consider less drastic measures. Ferdik, 963 F.2d at 1262; Henderson, 779

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F.2d at 1424. Given these facts, the policy favoring disposition of cases on their merits is outweighed

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by the factors in favor of dismissal.

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IV.

Order
Good cause appearing, the Clerk of Court is DIRECTED to assign a United States District

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Judge to this action.

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V.

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Findings and Recommendations
Plaintiff has failed to prosecute this action and failed to comply with the Court’s order dated

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November 18, 2014. (Doc. 2) Accordingly, the Court RECOMMENDS this action be DISMISSED

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WITHOUT PREJUDICE.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within 14 days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

December 22, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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