Lopez v. Holland et al

Filing 14

FINDINGS and RECOMMENDATIONS Recommending to Dismiss 1 Action for Failure to Comply with Court Order and Failure to Prosecute signed by Magistrate Judge Michael J. Seng on 07/05/2016. Referred to Judge Ishii; Objections to F&R due by 7/22/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CARLOS FRANCISCO LOPEZ,

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Plaintiff,
v.
HOLLAND, et al.,
Defendants.

CASE No. 1:16-cv-0039-AWI-MJS (PC)
FINDINGS & RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
COMPLY WITH COURT ORDER AND
FAILURE TO PROSECUTE
(ECF NO. 11)
FOURTEEN-DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights
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action pursuant to 42 U.S.C. § 1983. On April 1, 2016, Plaintiff’s complaint was

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dismissed for failure to state a claim, and he was granted thirty days to file an amended
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complaint. (ECF No. 10.) On April 18, 2016, the undersigned granted Plaintiff’s motion

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for a 60-day extension of time to file a First Amended Complaint, and his amended
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pleading was due on or before June 18, 2016. That date has now passed, and Plaintiff
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has not filed an amended complaint or otherwise responded to the Court’s order.
Local Rule 110 provides that “failure of counsel or of a party to comply with these

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Rules or with any order of the Court may be grounds for imposition by the Court of any
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and all sanctions . . . within the inherent power of the Court.” District courts have the
inherent power to control their dockets and “in the exercise of that power, they may

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impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v.

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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, failure to obey a court order, or failure

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to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-

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61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

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complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure

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to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

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comply with a 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).

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In determining whether to dismiss an action for lack of prosecution, failure to obey

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a court order, or failure to comply with local rules, the Court must consider several

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factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need

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to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy

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favoring disposition of cases on their merits, and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833

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F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the public’s interest in expeditiously resolving this litigation

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and the Court’s interest in managing its docket weigh in favor of dismissal. The third

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factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since no

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Defendant has yet appeared in this case and, in any event, a presumption of injury

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arises from the occurrence of unreasonable delay in prosecuting this action. Anderson v.

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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

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dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this

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stage in the proceedings there is little available which would constitute a satisfactory

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lesser sanction while preserving scarce Court resources. Plaintiff has not paid the filing

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fee for this action and is likely unable to pay, making monetary sanctions of little use.

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Based on the foregoing, it is HEREBY RECOMMENDED that the action be

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dismissed, with prejudice, for failure to obey a court order and failure to prosecute.

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The findings and recommendation are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with the findings and recommendation, any party

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may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

July 5, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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