Welch v. Allenby et al

Filing 16

FINDINGS and RECOMMENDATIONS recommending that This Action be DISMISSED, Without Prejudice, for Failure to Obey a Court Order and Failure to Prosecute re 1 Complaint signed by Magistrate Judge Michael J. Seng on 4/22/2015. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KENDYL WELCH, 10 11 12 13 14 15 Plaintiff, v. CLIFF ALLENBY, et al., Defendants. CASE NO. 1:15-cv-00121-LJO-MJS (PC) FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (ECF No. 15) FOURTEEN (14) DAY OBJECTION DEADLINE 16 Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil 17 rights action brought pursuant to 42 U.S.C. § 1983. On March 18, 2015, Plaintiff’s 18 complaint was dismissed for failure to state a claim, and he was ordered to file a petition 19 for a writ of habeas corpus or a notice of voluntary dismissal within thirty days. (ECF No. 20 15.) The thirty-day deadline passed without Plaintiff filing either a habeas petition or 21 notice of voluntary dismissal, or seeking an extension of time to do so. 22 Local Rule 110 provides that “failure of counsel or of a party to comply with these 23 Rules or with any order of the Court may be grounds for imposition by the Court of any 24 and all sanctions . . . within the inherent power of the Court.” District courts have the 25 inherent power to control their dockets and “in the exercise of that power, they may 26 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 27 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 28 1 on a party’s failure to prosecute, failure to obey a court order, or failure to comply with 2 local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 3 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 4 1992) (dismissal for failure to comply with an order requiring amendment of a complaint); 5 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 6 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 7 U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply 8 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424-25 (9th Cir. 1986) 9 (dismissal for lack of prosecution and failure to comply with local rules). 10 In determining whether to dismiss an action for lack of prosecution, failure to obey 11 a court order, or failure to comply with local rules, the Court must consider several 12 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 13 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 14 favoring disposition of cases on their merits, and (5) the availability of less drastic 15 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423. 16 In the instant case, the public’s interest in expeditiously resolving this litigation 17 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 18 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 19 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 20 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – 21 public policy favoring disposition of cases on their merits – is greatly outweighed by the 22 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 23 sanctions, at this stage in the proceedings there is little available which would constitute 24 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 25 paid the filing fees in this action and likely is unable to pay, making monetary sanctions 26 of little use. 27 28 Based on the foregoing, it is HEREBY RECOMMENDED that the action be dismissed, without prejudice, for failure to obey a court order and failure to prosecute. 2 1 These Findings and Recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 3 fourteen (14) days after being served with these Findings and Recommendations, any 4 party may file written objections with the Court and serve a copy on all parties. Such a 5 document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendations.” Any reply to the objections shall be served and filed within fourteen 7 (14) days after service of the objections. The parties are advised that failure to file 8 objections within the specified time may result in the waiver of rights on appeal. 9 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 10 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 IT IS SO ORDERED. Dated: April 22, 2015 /s/ 14 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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