Lasher v. Miranda et al

Filing 88

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/18/14 RECOMMENDING that this action be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GARY LASHER,

12
13
14

No. 2: 11-cv-2564 JAM KJN P
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

R. MIRANDA, et al.,

15

Defendants.

16
17

Plaintiff is state prisoner, proceeding without counsel, with a civil rights action pursuant to

18

42 U.S.C. § 1983. For the following reasons, the undersigned recommends that this action be

19

dismissed.

20

This action is set for jury trial before the Honorable John A. Mendez on September 22,

21

2014. On March 3, 2014, defendants informed the court that plaintiff had been extradited from

22

California to Arizona. (ECF No. 84.) Plaintiff did not file a notice of change of address

23

reflecting his Arizona address. Accordingly, on March 10, 2014, the undersigned ordered

24

plaintiff to show cause within thirty days why this action should not be dismissed for his failure

25

to file a notice of change of address. (ECF No. 87.) Thirty days passed and plaintiff did not

26

respond to the March 10, 2014 order.

27
28

“District courts have inherent power to control their dockets,” and in exercising that
power, a court may impose sanctions including dismissal of an action. Thompson v. Housing
1

1

Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). Thus, a court may dismiss an

2

action based upon a party’s failure to prosecute an action or failure to obey a court order. See,

3

e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply

4

with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128,

5

130 (9th Cir. 1987) (dismissal for failure to comply with a court order).

6

To determine whether to dismiss an action for failure to prosecute or failure to obey a

7

court order, the court must consider several factors, including: “(1) the public’s interest in

8

expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of

9

prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and

10

(5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423–24 (9th

11

Cir. 1986); see also Ferdik, 963 F.2d at 1260–61; Thomspon, 782 F.2d at 831.

12

Considering the first factor, plaintiff’s failure to comply with the court order directing him

13

to file a notice of change of address demonstrates his lack of interest in prosecuting this action.

14

The public’s interest in the expeditious resolution of litigation favors the dismissal of cases where

15

the plaintiff has lost interest. The court’s need to manage its docket also favors dismissal under

16

these circumstances. Defendants will be prejudiced if they are required to prepare for a trial in an

17

action that the plaintiff apparently has no interest in prosecuting. Because plaintiff has not

18

communicated with the court, it does not appear that less drastic sanctions are appropriate. While

19

the public policy favoring disposition of cases on their merits weights against dismissal, the other

20

four factors indicate that dismissal of this action is appropriate.

21

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall serve this order

22

on plaintiff at the following addresses: 1) Gary Lasher, c/o Yavapai County Detention Center

23

2830 North Commonwealth Drive, Suite 105, Camp Verde, Arizona, 86322; and 2) Gary Lasher,

24

F-86589, Pleasant Valley State Prison, P.O. Box 8500, Coalinga, CA, 93210;

25

IT IS HEREBY RECOMMENDED that this action be dismissed

26

These findings and recommendations are submitted to the United States District Judge

27

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

28

after being served with these findings and recommendations, any party may file written
2

1

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

2

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

3

objections shall be filed and served within fourteen days after service of the objections. The

4

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

5

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

6

Dated: April 18, 2014

7
8

Lash2564.dis

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3