Martinez v. Davey et al

Filing 47

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action, With Prejudice, for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute 42 , signed by Magistrate Judge Barbara A. McAuliffe on 10/4/17: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO MARTINEZ,

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Plaintiff,
v.
D. DAVEY, et al.,

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Case No. 1:16-cv-00084-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM, FAILURE TO OBEY A
COURT ORDER, AND FAILURE TO
PROSECUTE

Defendants.
(ECF No. 42)

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FOURTEEN (14) DAY DEADLINE

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I.

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Plaintiff Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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Background

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On July 11, 2017, the Court dismissed the first amended complaint with leave to amend

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within thirty days after service. (ECF No. 42). Plaintiff was expressly warned that if he failed to

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file a second amended complaint in compliance with the Court’s order, this action would be

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dismissed for failure to state a claim and failure to obey a court order. (Id. at 10.) Thereafter,

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Plaintiff was granted a thirty-day extension of time to amend his complaint. (ECF No. 46.) The

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deadline for Plaintiff to file a second amended complaint has passed, and he has not complied

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with the Court’s order.
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II.

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

Discussion

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(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:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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Here, the action has been pending since October 2015, and Plaintiff’s second amended

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complaint is overdue. Plaintiff has previously been granted an extension of time to file his second

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amended complaint, but despite the Court’s leniency, he has not yet complied with the Court’s

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July 11, 2017 order. The Court cannot hold this case in abeyance awaiting such compliance by

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Plaintiff. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.

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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 usually weighs

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against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza,

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291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes
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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Prods. Liab.

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Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
Finally, the court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s July 11, 2017 order expressly

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warned Plaintiff that his failure to comply with that order would result in a dismissal of this

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action, with prejudice, for failure to state a claim and failure to obey a court order. (ECF No. 42,

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p. 10). Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court which

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating his case.

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III.

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Accordingly, it is HEREBY RECOMMENDED that:

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Conclusion and Recommendations

1. This action be dismissed, with prejudice, for failure to state a claim pursuant to 28 U.S.C.

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§ 1915A;
2. This action be dismissed for failure to obey the Court’s July 11, 2017 order (ECF No. 42),

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and for Plaintiff’s failure to prosecute this action; and

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3. This dismissal count as a strike against Plaintiff under 28 U.S.C. § 1915(g).

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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. The document should be captioned “Objections to

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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.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 4, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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