Sapien v. Chappelle et al

Filing 6

FINDINGS and RECOMMENDATIONS to Dismiss Action with Prejudice for Failure to Obey a Court Order and Failure to Prosecute; Fourteen (14) Day Deadline signed by Magistrate Judge Michael J. Seng on 6/5/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 6/23/2017. (Sant Agata, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD C. SAPIEN, 12 13 14 15 Plaintiff, v. AUDREY CHAPPELLE, et al., Defendants. 16 CASE NO. 1:16-cv-0910-DAD-MJS FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITH PREJUDICE FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (ECF Nos. 4, 5) FOURTEEN (14) DAY DEADLINE 17 18 19 Plaintiff is proceeding pro se and in forma pauperis in this action filed on June 24, 20 2016. On March 22, 2017, Plaintiff’s complaint was dismissed for failure to state a claim. 21 Plaintiff was then granted leave to file an amended complaint. The deadline for filing an 22 amended complaint has now passed, and Plaintiff has not filed a new pleading or 23 otherwise responded to the Court’s order. 24 Local Rule 110 provides that “failure of counsel or of a party to comply with these 25 Rules or with any order of the Court may be grounds for imposition by the Court of any 26 and all sanctions . . . within the inherent power of the Court.” 27 28 1 District courts have the inherent power to control their dockets and “in the 2 exercise of that power, they may impose sanctions including, where appropriate, default 3 or dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court 4 may dismiss an action, with prejudice, based on a party’s failure to prosecute, failure to 5 obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 6 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 7 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 8 order requiring amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th 9 Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep 10 court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 11 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 12 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply 13 with local rules). 14 In the instant case, the public’s interest in expeditiously resolving this litigation 15 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 16 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 17 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 18 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – 19 public policy favoring disposition of cases on their merits – is greatly outweighed by the 20 factors in favor of dismissal discussed herein, particularly where it is unclear whether the 21 named Plaintiff is aware of this action or has brought it on his own behalf. Finally, as for 22 the availability of lesser sanctions, at this stage in the proceedings there is little available 23 which would constitute a satisfactory lesser sanction while preserving scarce Court 24 resources. Plaintiff has not paid the filing fee in this action, making monetary sanctions of 25 little use. 26 27 28 2 1 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed with 2 prejudice for failure to comply with the Court’s order (ECF Nos. 4, 5) and failure to 3 prosecute. 4 The findings and recommendation are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 6 fourteen (14) days after being served with the findings and recommendation, any party 7 may file written objections with the Court and serve a copy on all parties. Such a 8 document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendation.” Any reply to the objections shall be served and filed within fourteen 10 (14) days after service of the objections. The parties are advised that failure to file 11 objections within the specified time may result in the waiver of rights on appeal. 12 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 13 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 IT IS SO ORDERED. Dated: June 5, 2017 /s/ 17 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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?