Moses Flores v. Wespak

Filing 6

FINDINGS and RECOMMENDATIONS recommending that This Action be DISMISSED for Plaintiff's Failure to Comply With a Court Order re 3 Complaint signed by Magistrate Judge Barbara A. McAuliffe on 4/21/2017. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MOSES FLORES, Plaintiff, 12 13 14 15 v. WESPAK, Case No. 1:17-cv-0326 AWI-BAM FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF THIS ACTION FOR FAILURE TO OBEY A COURT ORDER Defendant. 16 On March 6, 2017, Plaintiff Moses Flores, a Nevada state prisoner proceeding pro se, 17 18 filed suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. On 19 March 13, 2017, Plaintiff was ordered to fill out an in forma pauperis (“IFP”) application, or pay 20 the $400.00 filing fee, within thirty (30) days, or on or before April 13, 2017. To date, Plaintiff 21 has not filed an IFP application, or paid the filing fee as ordered. 22 DISCUSSION 23 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 24 or with any order of the Court may be grounds for imposition by the Court of any and all 25 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 26 control their dockets and “[i]n the exercise of that power, they may impose sanctions including, 27 where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 28 1 1 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 2 action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 3 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 4 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 5 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 6 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 7 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure 8 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 9 (dismissal for lack of prosecution and failure to comply with local rules). In determining whether 10 to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply 11 with local rules, the court must consider several factors: (1) the public’s interest in expeditious 12 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 13 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 14 availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; 15 16 17 18 19 20 21 22 23 24 25 Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. In the instant case, the Court finds that the public’s interest in expeditiously resolving this litigation and the Court’s interest in managing the docket weigh in favor of dismissal because there is no indication that Plaintiff intends to prosecute this action. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order was clear that dismissal would result for failure to comply with the Court’s order. (Doc. 2). 26 27 28 CONCLUSION AND RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 2 1 Plaintiff’s failure to comply with a court order. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 4 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 5 file written objections with the Court. 6 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 7 objections within the specified time may result in the waiver of the “right to challenge the 8 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 9 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). The document should be captioned “Objections to 10 11 12 IT IS SO ORDERED. Dated: /s/ Barbara April 21, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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