Sherman v. City of Davis

Filing 35

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/3/2012 VACATING the Motion Hearing as to 34 Motion to Dismiss set for 8/9/2012 at 10:00 AM; RECOMMENDING that the 34 Motion to Dismiss be granted and that this action be dismissed with prejudice pursuant to L.R 110; F.R.Cv.P. 41(b). Motion referred to Judge John A. Mendez. Objections due within 14 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH A. SHERMAN,

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Plaintiff,

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vs.

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No. 2:11-cv-0820 JAM GGH PS

CITY OF DAVIS,

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ORDER AND

Defendant.

FINDINGS & RECOMMENDATIONS
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By order filed June 19, 2012, plaintiff’s complaint was dismissed and fourteen

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days leave to file an amended complaint was granted. In the findings and recommendations,

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issued on March 6, 2012, and adopted by the district court on May 10, 2012, the court granted

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defendant’s motion to dismiss and informed plaintiff of the deficiencies in his complaint. The

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fourteen day period has now expired, and plaintiff has not filed an amended complaint or

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otherwise responded to the court’s order. Plaintiff has apparently decided to rest on the

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dismissed complaint. Defendant filed a motion to dismiss on July 6, 2012 and noticed it for

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hearing on August 9, 2012. Plaintiff has not filed an opposition.

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Although the court liberally construes the pleadings of pro se litigants, they are

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required to adhere to court orders. Failure to comply with the Local Rules or “any order of the

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court may be grounds for imposition . . . of any and all sanctions authorized by statute or Rule or
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within the inherent power of the Court.” E. D. Cal. L. R. 110; see also E. D. Cal. L. R. 183

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(requiring compliance with the Local and Federal Rules by pro se litigants).

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“Failure to follow a district court’s local rules is a proper ground for dismissal.”

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The court should consider: (1) the public’s

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interest in expeditious resolution of litigation, (2) the court’s need to manage its docket, (3) the

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risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on their

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merits, and (5) the availability of less drastic sanctions. Similar considerations authorize

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dismissal of an action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Link v. Wabash

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R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991).

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Moreover, failure to obey court orders is a separate and distinct ground for imposing the sanction

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of dismissal. See Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

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(setting forth same factors for consideration as Ghazali).

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The court has considered the factors set forth in Ghazali. “[T]he key factors are

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prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th

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Cir.1990). Defendant is clearly prejudiced by the requirement of defending an abandoned case,

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and this court is put in the untenable position of expending limited judicial resources to decide

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such a case on the merits. The public’s interest in expeditious resolution of litigation, the court’s

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need to manage its docket, and the unsuitability of a less drastic sanction, direct that this case be

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dismissed.

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Defendant’s motion to dismiss, filed July 6, 2012, is also based on the
aforementioned grounds.
Accordingly, IT IS ORDERED that: the hearing on defendant’s motion to dismiss
is vacated from the calendar for August 9, 2012.
For the reasons given in the March 6, 2012 findings and recommendations, and

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herein, IT IS HEREBY RECOMMENDED that defendant’s motion to dismiss, filed July 6,

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2012, be granted and this action be dismissed with prejudice. See Local Rule 110; Fed. R. Civ.
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P. 41(b).
These findings and recommendations are 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, any party may

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file written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge”s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within seven (7) days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 3, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076/Sherman0820.fta.wpd

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