Kibler v. Unknown
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT KIBLER,
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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.
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INTRODUCTION
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Plaintiff Robert Kibler (“Plaintiff”), proceeding pro se, initiated this action on April 19,
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2015, but did not submit an application to proceed in forma pauperis or, alternatively, pay the
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$400.00 filing fee.
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application to proceed in forma pauperis or pay the $400.00 filing fee no later than June 22, 2015.
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(Doc. 2.) To date, Plaintiff has not complied with the Court’s order.
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(Doc. 1.)
On May 6, 2015, the Court ordered Plaintiff to submit an
DISCUSSION
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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules
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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.
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1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an
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action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v.
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Moran, 46 F.3d 52, 53 54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.
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Bonzelet, 963 F.2d 1258, 1260 61 (9th Cir. 1992) (dismissal for failure to comply with an order
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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440 41 (9th Cir. 1988)
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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of
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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure
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to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
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(dismissal for lack of prosecution and failure to comply with local rules). In determining whether
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to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply
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with local rules, the court must consider several factors: (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
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availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61;
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Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423.
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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 because
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there is no indication that the Plaintiff intends to prosecute this action. The third factor, risk of
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prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises
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from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524
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(9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is
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greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that
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his failure to obey the court’s order will result in dismissal satisfies the “consideration of
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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779
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F.2d at 1424.
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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
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would result from non-compliance with the Court's order.
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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for
Plaintiff’s failure to comply with a court order.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may
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file written objections with the Court.
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
The document should be captioned “Objections to
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IT IS SO ORDERED.
Dated:
/s/ Barbara
June 26, 2015
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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