Dominguez v. Morgan et al
Filing
14
FINDINGS and RECOMMENDATION to Dismiss 1 Action for Failure to State a Claim, Failure to Obey Court Order, and Failure to Prosecute; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 1/24/2018. Referred to Judge Dale A. Drozd. Objections to F&R due by 2/12/2018. (Sant Agata, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
AMORY DOMINGUEZ,
12
13
14
15
Plaintiff,
v.
QUEEN VICTORIA MORGAN, et al.,
Defendants.
16
CASE No. 1:17-cv-01403-AWI-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
STATE A CLAIM, FAILURE TO OBEY
COURT ORDER, AND FAILURE TO
PROSECUTE
(ECF No. 13)
FOURTEEN (14) DAY OBJECTION
DEADLINE
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 28 U.S.C. § 1983.
On November 22, 2017, the Court dismissed Plaintiff’s complaint for failure to
state a claim but gave thirty days leave to amend. (ECF No. 12.) That deadline passed
without Plaintiff either filing an amended pleading or notice of voluntary dismissal, or
seeking an extension of time to do so. On January 4, 2018, the Court ordered Plaintiff to
show cause why the action should not be dismissed based on Plaintiff’s failure to
respond as ordered by the Court. (ECF No. 13.) Plaintiff filed no response and the time
for doing so has passed.
1
Local Rule 110 provides that “failure 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
3
and all sanctions . . . within the inherent power of the Court.” District courts have the
4
inherent power to control their dockets and “in the exercise of that power, they may
5
impose sanctions including, where appropriate, default or dismissal.” Thompson v.
6
Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with
7
prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure
8
to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)
9
(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-
10
61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a
11
complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure
12
to comply with local rule requiring pro se plaintiffs to keep court apprised of address);
13
Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
14
comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
15
(dismissal for lack of prosecution and failure to comply with local rules).
16
In determining whether to dismiss an action for lack of prosecution, failure to obey
17
a court order, or failure to comply with local rules, the Court must consider several
18
factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need
19
to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy
20
favoring disposition of cases on their merits, and (5) the availability of less drastic
21
alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833
22
F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
23
In the instant case, the public’s interest in expeditiously resolving this litigation
24
and the Court’s interest in managing its docket weigh in favor of dismissal. The third
25
factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a
26
presumption of injury arises from the occurrence of unreasonable delay in prosecuting
27
this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor --
28
public policy favoring disposition of cases on their merits -- is greatly outweighed by the
2
1
factors in favor of dismissal discussed herein. Finally, as for the availability of lesser
2
sanctions, at this stage in the proceedings there is little available which would constitute
3
a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not
4
paid the filing fee for this action and is likely unable to pay, making monetary sanctions
5
of little use.
6
Based on the foregoing, it is HEREBY RECOMMENDED that the action be
7
dismissed, with prejudice, for failure to state a claim, failure to obey a court order and
8
failure to prosecute.
9
The findings and recommendation are submitted to the United States District
10
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
11
fourteen (14) days after being served with the findings and recommendation, any party
12
may file written objections with the Court and serve a copy on all parties. Such a
13
document should be captioned “Objections to Magistrate Judge’s Findings and
14
Recommendation.” Any reply to the objections shall be served and filed within fourteen
15
(14) days after service of the objections. The parties are advised that failure to file
16
objections within the specified time may result in the waiver of rights on appeal.
17
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
18
F.2d 1391, 1394 (9th Cir. 1991)).
19
20
21
IT IS SO ORDERED.
Dated:
January 24, 2018
/s/
22
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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?