Moreno v. Putnam et al

Filing 8

ORDER and FINDINGS and RECOMMENDATION to Dismiss Action Without Prejudice re 1 Complaint, signed by Magistrate Judge Michael J. Seng on 1/19/17. This Case is Assigned to District Judge Dale A. Drozd and Magistrate Judge Michael J. Seng. The New Case Number is: 1:16-cv-01429-DAD-MJS. Referred to Judge Drozd. Fourteen-Day Objection Deadline. (Gonzalez, R)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

CESAR MORENO,

13
14
15
16

Plaintiff,
v.
S. PUTNAM, et al.,

CASE No. 1:16-cv-1429- MJS (PC)
ORDER AND FINDINGS AND
RECOMMENDATION TO DISMISS
ACTION WITHOUT PREJUDICE
FOURTEEN-DAY DEADLINE

Defendants.

17
18
19
20

Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in a civil
rights action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
On November 23, 2016, Plaintiff’s complaint was dismissed with leave to amend,

21

and Plaintiff was granted thirty days to file an amended complaint. (ECF No. 6.) When

22

Plaintiff failed to file a pleading, the undersigned issued an Order to Show Cause why

23

this action should not be dismissed for failure to comply with a court order. (ECF No. 7.)

24

Plaintiff has again not responded to the Court’s order.

25

Local Rule 110 provides that “failure of counsel or of a party to comply with these

26

Rules or with any order of the Court may be grounds for imposition by the Court of any

27

and all sanctions . . . within the inherent power of the Court.”

28
1

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 . . .

3

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

4

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

5

failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v.

6

Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule);

7

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

8

comply with an order requiring amendment of a complaint); Carey v. King, 856 F.2d

9

1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro

10

se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d

11

128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v.

12

Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and

13

failure to comply with local rules).

14

In determining whether to dismiss an action for lack of prosecution, failure to obey

15

a court order, or failure to comply with local rules, the Court must consider several

16

factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need

17

to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy

18

favoring disposition of cases on their merits, and (5) the availability of less drastic

19

alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833

20

F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

21

In the instant case, the public’s interest in expeditiously resolving this litigation

22

and the Court’s interest in managing its docket weigh in favor of dismissal. The third

23

factor, risk of prejudice to Defendants, neither weighs for nor against dismissal since no

24

Defendant has yet to appear in this action. The fourth factor – public policy favoring

25

disposition of cases on their merits – is greatly outweighed by the factors in favor of

26

dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this

27

stage in the proceedings there is little available which would constitute a satisfactory

28
2

1

lesser sanction while preserving scarce Court resources. Plaintiff has not paid the filing

2

fee for this action and is likely unable to pay, making monetary sanctions of little use.

3
4
5
6

Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall assign a
district judge to this case; and
IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice
for Plaintiff’s failure to comply with court orders.

7

These findings and recommendations will be submitted to the United States

8

District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

9

636(b)(1). Within fourteen (14) days after being served with the findings and

10

recommendations, the parties may file written objections with the Court. The document

11

should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”

12

A party may respond to another party’s objections by filing a response within fourteen

13

(14) days after being served with a copy of that party’s objections. The parties are

14

advised that failure to file objections within the specified time may result in the waiver of

15

rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter

16

v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

17
18
19
20

IT IS SO ORDERED.
Dated:

January 19, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
3