Zapata v. Kunkel et al

Filing 5

FINDINGS and RECOMMENDATIONS regarding dismissal of this action for failure to obey a court order signed by Magistrate Judge Barbara A. McAuliffe on 12/8/2017. Referred to Judge Lawrence J. O'Neill; Objections to F&R's due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOMINGO ZAPATA,

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Plaintiff,
v.

Case No. 1:17-cv-1319 LJO-BAM
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF THIS
ACTION FOR FAILURE TO OBEY A
COURT ORDER

JOHN KUNKEL, TONI JONES, KEN
MOORE, and FERNANDO CHAVEZ,
Defendants.

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Plaintiff Domingo Zapata, appearing pro se, filed this civil action on October 2, 2017.
(ECF No. 1.)

On October 25, 2017, Plaintiff was ordered to fill out a long form in forma

pauperis (“IFP”) application, or pay the $400.00 filing fee, within thirty (30) days, or on or before
November 15, 2017. To date, Plaintiff has not filed the proper IFP application, or paid the filing

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fee as ordered.
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DISCUSSION
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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for imposition by the Court of any and all
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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to
control their dockets and “[i]n the exercise of that power, they may impose sanctions including,
where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.
1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an
action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v.
Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)

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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of

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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure

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to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

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(dismissal for lack of prosecution and failure to comply with local rules). In determining whether

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to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply

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with local rules, the court must consider several factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61;

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Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.

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In the instant case, the Court finds that the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal because

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there is no indication that Plaintiff intends to prosecute this action. The third factor, risk of

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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).
CONCLUSION AND RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for
Plaintiff’s failure to comply with a court order.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may
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file written objections with the Court.

The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 8, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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