Hernandez v. Lopez et al
Filing
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FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE RE 15 signed by Magistrate Judge Barbara A. McAuliffe on 8/31/2015. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/17/2015. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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HENRY HERNANDEZ,
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Plaintiff,
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v.
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N. LOPEZ, et al.,
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Defendants.
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Case No.: 1:15-cv-00180-AWI-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 No. 15)
FOURTEEN-DAY DEADLINE
Plaintiff Henry Hernandez (“Plaintiff”), a former state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, initiated this action on January 8,
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2015. On July 20, 2015, the Court dismissed Plaintiff’s second amended complaint with leave to
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amend within thirty days. (ECF No. 15.) Plaintiff was warned that if he failed to file an amended
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complaint in compliance with the Court’s order, this action would be dismissed for failure to obey a
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court order and failure to state a claim. (Id. at 5.) The deadline for Plaintiff to file his amended
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complaint has passed, and he has not complied with or 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 any
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order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the
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inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n
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the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.”
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Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with
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prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or failure to
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comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal
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for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service,
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833 F.2d 128, 130-33 (9th 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) the
public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3)
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the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
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merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423
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(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 pending
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since January 2015. Plaintiff has made no attempt to contact the Court or otherwise comply with the
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Court’s July 20, 2015 order. The Court cannot hold this case in abeyance awaiting such compliance
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by Plaintiff. The third factor, risk of prejudice to defendant, 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, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring
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disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal
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discussed herein. Finally, the court’s warning to a party that failure to obey the court’s order will
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result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at
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1262; Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s July 20, 2015 order
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granting Plaintiff leave to amend his complaint expressly stated, “If Plaintiff fails to file a first
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amended complaint in compliance with this order, this action will be dismissed for failure to obey a
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court order and for failure to state a claim.” (ECF No. 15, p. 5.) Thus, Plaintiff had adequate warning
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that dismissal could 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 July 20, 2015 order, for failure to state a claim, and for
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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 fourteen (14)
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days after being served with these findings and recommendations, Plaintiff may file written objections
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with the Court. The 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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result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson
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v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
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1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
August 31, 2015
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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