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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD C. SAPIEN,

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Plaintiff,
v.
AUDREY CHAPPELLE, et al.,
Defendants.

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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

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Plaintiff is proceeding pro se and in forma pauperis in this action filed on June 24,

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2016. On March 22, 2017, Plaintiff’s complaint was dismissed for failure to state a claim.

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Plaintiff was then granted leave to file an amended complaint. The deadline for filing an

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amended complaint has now passed, and Plaintiff has not filed a new pleading or

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otherwise responded to the Court’s order.

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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.”

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District courts have the inherent power to control their dockets and “in the

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exercise of that power, they may impose sanctions including, where appropriate, default

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

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

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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.

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

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order requiring amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th

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Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep

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court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.

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1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779

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F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply

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with local rules).

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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 a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting

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this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor –

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public policy favoring disposition of cases on their merits – is greatly outweighed by the

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factors in favor of dismissal discussed herein, particularly where it is unclear whether the

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named Plaintiff is aware of this action or has brought it on his own behalf. Finally, as for

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the availability of lesser sanctions, at this stage in the proceedings there is little available

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which would constitute a satisfactory lesser sanction while preserving scarce Court

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resources. Plaintiff has not paid the filing fee in this action, making monetary sanctions of

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little use.

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Accordingly, it is HEREBY RECOMMENDED that this action be dismissed with

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prejudice for failure to comply with the Court’s order (ECF Nos. 4, 5) and failure to

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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:

June 5, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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