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)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 DOMINGO ZAPATA, 8 9 10 11 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. 12 13 14 15 16 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 17 fee as ordered. 18 DISCUSSION 19 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 20 or with any order of the Court may be grounds for imposition by the Court of any and all 21 22 23 24 25 26 27 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 28 1 1 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 2 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 3 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure 4 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 5 (dismissal for lack of prosecution and failure to comply with local rules). In determining whether 6 to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply 7 with local rules, the court must consider several factors: (1) the public’s interest in expeditious 8 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 9 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 10 availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; 11 Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 12 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 13 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because 14 there is no indication that Plaintiff intends to prosecute this action. The third factor, risk of 15 16 17 18 19 20 21 22 23 24 25 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. 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 28 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 2 1 file written objections with the Court. The document should be captioned “Objections to 2 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 3 objections within the specified time may result in the waiver of the “right to challenge the 4 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 5 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 8 IT IS SO ORDERED. Dated: /s/ Barbara December 8, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 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?