Wolfe v. Stanislaus County, et al.

Filing 33

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action, with Prejudice, for Failure to Obey a Court Order and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 7/15/2019. Referred to Judge Anthony W. Ishii. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WADE WOLFE,

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Case No. 1:18-cv-00570-AWI-BAM (PC)
Plaintiff,

v.
STANISLAUS COUNTY, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
OBEY A COURT ORDER AND FAILURE
TO PROSECUTE
(ECF No. 32)
FOURTEEN (14) DAY DEADLINE

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I.

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Plaintiff Wade Wolfe (“Plaintiff”) is a former state prisoner proceeding pro se and in

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Background

forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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On May 10, 2019, the Court issued findings and recommendations to dismiss certain

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claims and defendants and for this action to proceed on the cognizable Fourteenth Amendment

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claim against Defendant John Doe stated in the second amended complaint. (ECF No. 30.)

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On May 30, 2019, Plaintiff filed his objections to the findings and recommendations,

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wherein he requested further leave to amend. (ECF No. 31.) As Plaintiff wished to include new

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information, including identifying Defendant John Doe and adding a related claim against the

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second transporting sheriff, the Court granted Plaintiff’s request to file an amended complaint.
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Plaintiff was ordered to file a third amended complaint within thirty (30) days. (ECF No. 32.)

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Plaintiff was expressly warned that his failure to file a third amended complaint in compliance

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with the Court’s order would result in dismissal of this action for failure to prosecute and failure

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to obey a court order. (Id. at 2.) The deadline for Plaintiff to file his third amended complaint has

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passed, and he has not complied with the Court’s order or otherwise communicated with the

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Court.

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II.

Discussion

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

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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Here, the action has been pending since April 2018, and Plaintiff’s third amended

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complaint is overdue. The Court cannot hold this case in abeyance awaiting such compliance by

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Plaintiff. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs

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against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza,

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291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Prods. Liab.

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Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).

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Finally, the court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s May 31, 2019 order granting

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Plaintiff’s request to file an amended complaint expressly warned Plaintiff that failure to comply

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with that order would result in a dismissal of this action for failure to obey a court order and

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failure to prosecute. (ECF No. 32, p. 2.) Thus, Plaintiff had adequate warning that dismissal

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could result from his noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court which

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating her case.

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III.

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Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with

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Conclusion and Recommendation

prejudice, for failure to obey a court order and failure to prosecute.

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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.

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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.

The document should be captioned “Objections to

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 15, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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