Bowlin v. County of Fresno et al

Filing 5

FINDINGS and RECOMMENDATIONS Regarding Dismissal of 1 Action, with Prejudice, for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 2/15/2019. Referred to Judge Dale A. Drozd. 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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TERRIA BOWLIN,

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Plaintiff
v.
THE COUNTY OF FRESNO, et al.,

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Case No. 1:18-cv-00660-DAD-BAM
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM, FAILURE TO OBEY A
COURT ORDER, AND FAILURE TO
PROSECUTE

Defendants.
(Doc. No. 4)

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FOURTEEN (14) DAY DEADLINE

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I.

Background

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Plaintiff Terria Bowlin (“Plaintiff”) is proceeding pro se and in forma pauperis in this civil

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rights action against the County of Fresno, Department of Social Services, and Child Protective

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Services (“CPS”) case worker Yolanda Dinwittie. (Doc. No. 1.)

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On December 28, 2018, the Court dismissed Plaintiff’s complaint with leave to amend

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within thirty days after service. (Doc. No. 4.) Plaintiff was expressly warned that if she failed to

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file an amended complaint in compliance with the Court’s order, this action would be dismissed

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for failure to state a claim and failure to obey a court order. (Id. at 7.) The deadline for Plaintiff to

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file her amended complaint has passed, and she has not complied with the Court’s order.
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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, failure

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to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d

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52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963

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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: (1)

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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 cases

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on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d

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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 May 2018 and Plaintiff’s amended complaint is

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overdue. The Court cannot hold this case in abeyance awaiting compliance by Plaintiff. Thus, the

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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 against

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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d

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

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it is to move a case toward disposition on the merits but whose conduct impedes progress in that

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direction,” which is the case here. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d

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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 December 28, 2018 order

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expressly warned Plaintiff that her failure to comply with that order would result in a dismissal of

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this action, with prejudice, for failure to state a claim and failure to obey a court order. (Doc. No.

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4 at 7. Thus, Plaintiff had adequate warning that dismissal could result from her 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 unnecessary

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expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, making

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monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to have no

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effect given that Plaintiff has ceased litigating her case.

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III.

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Accordingly, it is HEREBY RECOMMENDED that:

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1.

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Conclusion and Recommendations

This action be dismissed, with prejudice, for failure to state a claim pursuant to 28

U.S.C. § 1915(e)(2);
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This action be dismissed for failure to obey the Court’s December 28, 2018 order

(Doc. No. 4), and for Plaintiff’s failure to prosecute this action; and

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

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings”

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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.

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Dated:

/s/ Barbara

February 15, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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