Jones v. Sherman et al

Filing 17

FINDINGS and RECOMMENDATIONS Recommending Dismissal of This Action, With Prejudice, for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute 14 , 16 , signed by Magistrate Judge Barbara A. McAuliffe on 8/29/17: 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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WILLIAM JONES,
Plaintiff,

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v.
STUART SHERMAN, et al.,
Defendants.

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Case No.: 1:16-cv-01378-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THIS
ACTION, WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM, FAILURE TO OBEY A
COURT ORDER, AND FAILURE TO
PROSECUTE
(ECF Nos. 14, 16)
FOURTEEN (14) DAY DEADLINE

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Plaintiff William Jones (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.

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I.

Relevant Procedural History

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On June 20, 2017, the Court dismissed Plaintiff’s complaint with leave to amend within thirty

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(30) days. (ECF No. 14). Plaintiff failed to file an amended complaint or otherwise respond to the

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Court’s order.

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On August 2, 2017, the Court issued an order directing Plaintiff to show cause in writing

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within fourteen (14) days why this action should not be dismissed, with prejudice, for failure to state a

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claim, failure to obey a court order, and failure to prosecute. (ECF No. 16.) As of the date of this

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order, Plaintiff has not complied with or otherwise responded to the order to show cause.

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II.

Discussion

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

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order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the
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inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n

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the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.”

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Thompson v. 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 an action, failure to obey a court order, or failure to

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

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal

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for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service,

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833 F.2d 128, 130-33 (9th Cir. 1987) (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: (1) the

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public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3)

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the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423

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

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Here, Plaintiff’s amended complaint is overdue. Despite multiple attempts to communicate

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with Plaintiff, he has been non-responsive to the Court’s orders. The Court cannot effectively manage

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its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and second

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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 against

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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639,

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643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility it is to

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move a case toward disposition on the merits but whose conduct impedes progress in that direction,”

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which is the case here. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th

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Cir. 2006) (citation omitted).

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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 132-133; Henderson, 779 F.2d at 1424. The Court’s June 20, 2017 order expressly
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warned Plaintiff that his failure to file an amended complaint would result in a recommendation that

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the action be dismissed. (ECF No. 14, at p. 12). Plaintiff also was warned of the potential for

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dismissal, with prejudice, by the Court’s August 2, 2017 order to show cause. (ECF No. 16, at p. 2.)

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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 that would

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

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expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, making

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monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to have no effect

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given that Plaintiff has ceased litigating his case.

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III.

Conclusion and Recommendations

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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, with

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prejudice, for failure to state a claim, failure to obey the Court’s orders, and failure to prosecute this

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action.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being

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served with these Findings and Recommendations, Plaintiff may file written objections with the Court.

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The

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson

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v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

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1991)).

document

should

be

captioned

“Objections

to

Magistrate

Judge’s

Findings

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 29, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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and