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)

Download PDF
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

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?