Kibler v. Unknown

Filing 3

FINDINGS and RECOMMENDATIONS recommending dismissal of this action for failure to obey a court order signed by Magistrate Judge Barbara A. McAuliffe on 6/26/2015. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/16/2015.(Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT KIBLER, 12 13 14 15 1:15-cv-00658-LJO-BAM Plaintiff, v. FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF THIS ACTION FOR FAILURE TO OBEY A COURT ORDER UNKNOWN, Defendant. 16 17 18 INTRODUCTION 19 Plaintiff Robert Kibler (“Plaintiff”), proceeding pro se, initiated this action on April 19, 20 2015, but did not submit an application to proceed in forma pauperis or, alternatively, pay the 21 $400.00 filing fee. 22 application to proceed in forma pauperis or pay the $400.00 filing fee no later than June 22, 2015. 23 (Doc. 2.) To date, Plaintiff has not complied with the Court’s order. 24 (Doc. 1.) On May 6, 2015, the Court ordered Plaintiff to submit an DISCUSSION 25 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 26 or with any order of the Court may be grounds for the imposition by the Court of any and all 27 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 28 1 1 control their dockets and “[i]n the exercise of that power they may impose sanctions including, 2 where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 3 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 4 action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 5 Moran, 46 F.3d 52, 53 54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 6 Bonzelet, 963 F.2d 1258, 1260 61 (9th Cir. 1992) (dismissal for failure to comply with an order 7 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440 41 (9th Cir. 1988) 8 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 9 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure 10 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 11 (dismissal for lack of prosecution and failure to comply with local rules). In determining whether 12 to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply 13 with local rules, the court must consider several factors: (1) the public’s interest in expeditious 14 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 15 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 16 availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; 17 Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423. 18 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 19 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because 20 there is no indication that the Plaintiff intends to prosecute this action. The third factor, risk of 21 prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises 22 from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 23 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is 24 greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that 25 his failure to obey the court’s order will result in dismissal satisfies the “consideration of 26 alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 27 F.2d at 1424. 28 application, or alternatively, to pay the filing fee, was clear that a recommendation for dismissal The Court’s order requiring Plaintiff to file a completed in forma pauperis 2 1 would result from non-compliance with the Court's order. 2 3 4 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for Plaintiff’s failure to comply with a court order. 5 These Findings and Recommendations will be submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 7 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 8 file written objections with the Court. 9 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 10 objections within the specified time may result in the waiver of the “right to challenge the 11 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 12 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). The document should be captioned “Objections to 13 14 15 IT IS SO ORDERED. Dated: /s/ Barbara June 26, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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