Gomez v. The County of Fresno et al

Filing 8

FINDINGS and RECOMMENDATIONS recommending that This Action be DISMISSED for Failure to Obey a Court Order re 1 Complaint signed by Magistrate Judge Barbara A. McAuliffe on 3/23/2016. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AMANDA C. GOMEZ,
Plaintiff,

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v.
THE COUNTY OF FRESNO, et al.,

Case No. 1:16-cv-00122-AWI-BAM
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF THIS
ACTION FOR FAILURE TO OBEY A
COURT ORDER

Defendants.

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Plaintiff Amanda C. Gomez (“Plaintiff”), proceeding pro se and in forma pauperis,

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initiated this civil action on January 26, 2016. (Doc. 1). On February 12, 2016, the Court issued

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an order dismissing Plaintiff’s complaint for failure to state a cognizable claim. The Court

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directed Plaintiff to file a first amended complaint within thirty (30) days from service of the

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order. (Doc. 6). More than thirty days have passed and Plaintiff has failed to comply with this

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Court’s order.

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DISCUSSION

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

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

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failure 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 comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack

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of prosecution and failure to comply with local rules). In determining whether to dismiss an

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action for lack of prosecution, failure to obey a court order, or failure to comply with local rules,

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the court must consider several factors: (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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the public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at

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130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.
In the instant case, the Court finds that the public’s interest in expeditiously resolving this
litigation and the Court’s interest in managing the docket weigh in favor of dismissal because
there is no indication that Plaintiff intends to prosecute this action. The third factor, risk of
prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises
from any unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522,
524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits,
is greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party
that her failure to obey the court’s order will result in dismissal satisfies the “consideration of
alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779
F.2d at 1424. The Court’s order directing Plaintiff to file an amended complaint was clear that
dismissal would result from non-compliance with the Court’s order. (Doc. 6 at 5).

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CONCLUSION AND RECOMMENDATION
Based on the above, IT IS HEREBY RECOMMENDED that this action be
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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

March 23, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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