Michael Peralta vs Fresno County Police Officers

Filing 20

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Plaintiff's Failure to Prosecute and Failure to State a Claim re 18 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 8/21/2017. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL PERALTA,

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING ACTION
FOR FAILURE PROSECUTE AND
FAILURE TO STATE A CLAIM

v.

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Case No. 1:16-cv-01921-LJO-SAB

FRESNO COUNTY POLICE OFFICERS, et
al.,

OBJECTIONS DUE WITHIN THIRTY
DAYS

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Defendants.
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Plaintiff Michael Peralta, a state prisoner, is appearing pro se and in forma pauperis in

19 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint filed on December 27,
20 2016, was screened; and on March 10, 2017, an order issued dismissing the complaint for failure
21 to state a claim. Plaintiff was provided with the relevant legal standards and was ordered to file
22 an amended complaint within thirty days.
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After receiving several extensions of time, on June 22, 2017, Plaintiff filed a first

24 amended complaint which was screened and dismissed on July 11, 2017, for failure to state a
25 claim. Plaintiff was ordered to file a second amended complaint within thirty days. More than
26 thirty days have passed and Plaintiff has failed to file an amended complaint or otherwise
27 responded to the July 11, 2017 order.
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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these

2 Rules or with any order of the Court may be grounds for imposition by the Court of any and all
3 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to
4 control its docket and may, in the exercise of that power, impose sanctions where appropriate,
5 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir.
6 2000).
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A court may dismiss an action based on a party’s failure to prosecute an action, failure to

8 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52,
9 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d
10 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended
11 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to
12 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.
13 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply
14 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack
15 of prosecution and failure to comply with local rules).
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In determining whether to dismiss an action for failure to comply with a pretrial order,

17 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the
18 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
19 policy favoring disposition of cases on their merits; and (5) the availability of less drastic
20 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226
21 (9th Cir. 2006) (internal quotations and citations omitted). These factors guide a court in
22 deciding what to do, and are not conditions that must be met in order for a court to take action.
23 Id. (citation omitted).
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In this instance the public’s interest in expeditious resolution of the litigation and the

25 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine
26 (PPA) Products Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended
27 complaint within thirty days of July 11, 2017.

Plaintiff has been provided with the legal

28 standards that would apply to his claims and the opportunity to file a second amended complaint.

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1 Plaintiff has neither filed a second amended complaint nor otherwise responded to the Court’s
2 order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s ability to
3 move this action towards disposition, and indicates that Plaintiff does not intend to diligently
4 litigate this action.
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Since it appears that Plaintiff does not intend to litigate this action diligently there arises a

6 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447,
7 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of
8 dismissal.
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The public policy in favor of deciding cases on their merits is greatly outweighed by the

10 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This
11 action can proceed no further without Plaintiff’s cooperation and compliance with the order at
12 issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. In this
13 instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders.
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Finally, a court’s warning to a party that their failure to obey the court’s order will result

15 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262;
16 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s March 10, 2017 and July 11,
17 2017 orders both warned Plaintiff that this action would be dismissed if he failed to file an
18 amended complaint. The July 11, 2017 order requiring Plaintiff to file a second amended
19 complaint expressly stated: “If Plaintiff fails to file a second amended complaint in compliance with
20 this order, this action will be dismissed for failure to state a claim .” (ECF No. 7 at 7.) Thus,
21 Plaintiff had adequate warning that dismissal would result from his noncompliance with the
22 Court’s order and his failure to state a claim.
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Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED for

24 Plaintiff’s failure to prosecute and failure to state a claim.
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This findings and recommendations is submitted to the district judge assigned to this

26 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30)
27 days of service of this recommendation, Plaintiff may file written objections to this findings and
28 recommendations with the Court.

Such a document should be captioned “Objections to

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1 Magistrate Judge’s Findings and Recommendations.”

The district judge will review the

2 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
3 Plaintiff is advised that failure to file objections within the specified time may result in the
4 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
5 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.

8 Dated:

August 21, 2017
UNITED STATES MAGISTRATE JUDGE

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