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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 WILLIAM JONES, Plaintiff, 8 9 10 v. STUART SHERMAN, et al., Defendants. 11 12 13 14 ) ) ) ) ) ) ) ) ) ) ) ) ) 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 15 Plaintiff William Jones (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 16 action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge 17 pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 18 I. Relevant Procedural History 19 On June 20, 2017, the Court dismissed Plaintiff’s complaint with leave to amend within thirty 20 (30) days. (ECF No. 14). Plaintiff failed to file an amended complaint or otherwise respond to the 21 Court’s order. 22 On August 2, 2017, the Court issued an order directing Plaintiff to show cause in writing 23 within fourteen (14) days why this action should not be dismissed, with prejudice, for failure to state a 24 claim, failure to obey a court order, and failure to prosecute. (ECF No. 16.) As of the date of this 25 order, Plaintiff has not complied with or otherwise responded to the order to show cause. 26 II. Discussion 27 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with any 28 order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the 1 1 inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n 2 the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.” 3 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 4 prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or failure to 5 comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 6 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal 7 for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 8 833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to comply with court order). 9 In determining whether to dismiss an action, the Court must consider several factors: (1) the 10 public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) 11 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 12 merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 13 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 14 Here, Plaintiff’s amended complaint is overdue. Despite multiple attempts to communicate 15 with Plaintiff, he has been non-responsive to the Court’s orders. The Court cannot effectively manage 16 its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and second 17 factors weigh in favor of dismissal. 18 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 19 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 20 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 21 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 22 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility it is to 23 move a case toward disposition on the merits but whose conduct impedes progress in that direction,” 24 which is the case here. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th 25 Cir. 2006) (citation omitted). 26 Finally, the court’s warning to a party that failure to obey the court’s order will result in 27 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 28 Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s June 20, 2017 order expressly 2 1 warned Plaintiff that his failure to file an amended complaint would result in a recommendation that 2 the action be dismissed. (ECF No. 14, at p. 12). Plaintiff also was warned of the potential for 3 dismissal, with prejudice, by the Court’s August 2, 2017 order to show cause. (ECF No. 16, at p. 2.) 4 Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance. 5 Additionally, at this stage in the proceedings there is little available to the Court that would 6 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 7 expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, making 8 monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to have no effect 9 given that Plaintiff has ceased litigating his case. 10 III. Conclusion and Recommendations 11 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED, with 12 prejudice, for failure to state a claim, failure to obey the Court’s orders, and failure to prosecute this 13 action. 14 These Findings and Recommendations will be submitted to the United States District Judge 15 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 16 served with these Findings and Recommendations, Plaintiff may file written objections with the Court. 17 The 18 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 19 result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson 20 v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 21 1991)). document should be captioned “Objections to Magistrate Judge’s Findings 22 23 24 25 IT IS SO ORDERED. Dated: /s/ Barbara August 29, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 3 and

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