Simpson v. Ahlin
Filing
9
FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED, with prejudice, for failure to state a claim under 28:1915A(b)(1); this acton be dismissed for failure to obey the Court's September 16, 2016 order 6 and October 27, 2016 order 7 ; this action be dismissed for failure to prosecute this action re 1 Prisoner Civil Rights Complaint filed by Earl Simpson ; referred to Judge Drozd,signed by Magistrate Judge Barbara A. McAuliffe on 12/02/2016. Objections to F&R due (14-Day Deadline) (Martin-Gill, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
EARL SIMPSON,
12
13
14
Case No. 1:15-cv-01301-DAD-BAM (PC)
Plaintiff,
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO STATE A CLAIM, FAILURE
TO OBEY COURT ORDERS, AND FAILURE
TO PROSECUTE
Defendant.
(ECF No. 6, 7)
v.
PAM AHLIN,
15
16
FOURTEEN (14) DAY DEADLINE
17
18
I.
19
Plaintiff Earl Simpson (“Plaintiff”) is a state civil detainee proceeding pro se and in forma
20
pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on August
21
20, 2015. (ECF No. 1.) On September 16, 2016, the Court dismissed Plaintiff’s complaint with
22
leave to amend within thirty (30) days. (ECF No. 6.) Plaintiff was expressly warned that the
23
failure to file an amended complaint in compliance with the Court’s order would result in this
24
action being dismissed, with prejudice, for failure to obey a court order and failure to state a
25
claim. (Id. at pp. 5-6.)
26
Procedural History
Plaintiff failed to file an amended complaint and did not comply with or otherwise
27
respond to the Court’s order. Accordingly, on October 27, 2016, the Court issued an order for
28
Plaintiff to show cause, within twenty (20) days of service, why this action should not be
1
1
dismissed based on Plaintiff’s failure to comply with the Court’s September 16, 2016 order,
2
failure to state a claim, and failure to prosecute. (ECF No. 7.)
3
Plaintiff’s response to the order to show cause was due on or before November 21, 2016.
4
However, as of the date of this order, Plaintiff has neither complied with the Court’s orders, nor
5
otherwise communicated with the Court regarding his amended complaint.
6
II.
Discussion
7
Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with
8
any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .
9
within the inherent power of the Court.” District courts have the inherent power to control their
10
dockets and “[i]n the exercise of that power they may impose sanctions including, where
11
appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
12
court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
13
failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46
14
F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,
15
963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
16
amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th Cir. 1987)
17
(dismissal for failure to comply with court order).
18
In determining whether to dismiss an action, the Court must consider several factors: (1)
19
the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
20
docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
21
cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779
22
F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
23
Here, the action has been pending for over a year, and Plaintiff’s amended complaint is
24
overdue. Despite multiple attempts to communicate with Plaintiff, he has been non-responsive to
25
the Court’s orders. The Court cannot effectively manage its docket if Plaintiff ceases litigating his
26
case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.
27
The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a
28
presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
2
1
Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against
2
dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d
3
639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility
4
it is to move a case toward disposition on the merits but whose conduct impedes progress in that
5
direction,” which is the case here. In re Phenylpropanolamine (PPA) Products Liability
6
Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
7
Finally, the court’s warning to a party that failure to obey the court’s order will result in
8
dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;
9
Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s September 16, 2016 order
10
expressly warned Plaintiff that his failure to comply with that order would result in a
11
recommendation of dismissal of this action, with prejudice, for failure to state a claim and to obey
12
a court order. (ECF No. 6.) Plaintiff also was warned of the potential for dismissal by the Court’s
13
October 27, 2016 order to show cause. (ECF No. 7). Thus, Plaintiff had adequate warning that
14
dismissal could result from his noncompliance.
15
Additionally, at this stage in the proceedings there is little available to the Court which
16
would constitute a satisfactory lesser sanction while protecting the Court from further
17
unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this
18
action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is
19
likely to have no effect given that Plaintiff has ceased litigating his case.
20
III.
21
Accordingly, the Court HEREBY RECOMMENDS the following:
22
1. This action be dismissed, with prejudice, for failure to state a claim under 28 U.S.C. §
23
24
25
Conclusions and Recommendations
1915A(b)(1);
2. This action be dismissed for failure to obey the Court’s September 16, 2016 order
(ECF No. 6) and October 27, 2016 order (ECF No. 7); and
26
3. This action be dismissed for failure to prosecute this action.
27
These Findings and Recommendations will be submitted to the United States District
28
Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)
3
1
days after being served with these Findings and Recommendations, Plaintiff may file written
2
objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
3
Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
4
specified time may result in the waiver of the “right to challenge the magistrate’s factual
5
findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
6
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
7
8
9
IT IS SO ORDERED.
Dated:
/s/ Barbara
December 2, 2016
A. McAuliffe
_
UNITED STATES MAGISTRATE JUDGE
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?