(PC) Guillen v. Kramer, No. 1:2003cv06004 - Document 26 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS For Dismissal of Plaintiff's Complaint, referred to Judge O'Neill, signed by Magistrate Judge Michael J. Seng on 9/19/2011. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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(PC) Guillen v. Kramer Doc. 26 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 TOMAS RAMIREZ GUILLEN, Plaintiff, 8 9 10 11 v. MATTHEW C. KRAMER, Defendant. 1:03-cv-6004-LJO-MJS (PC) FINDINGS AND RECOMMENDATION FOR DISMISSAL OF PLAINTIFF’S COMPLAINT (ECF No. 25) THIRTY DAY DEADLINE 12 13 14 15 _______________________________/ Plaintiff Tomas Ramirez Guillen (“Plaintiff”) is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. 16 On July 25, 2011, the Court issued an Order to Show Cause Why the Case Should 17 Not be Dismissed for Failure to Comply with a Court Order, and ordered the Plaintiff to 18 file a second amended complaint by August 25, 2011. (ECF No. 25.) The August 25, 19 2011 deadline has passed and Plaintiff has not filed a second amended complaint, or 20 otherwise responded to the Court’s Order. 21 Local Rule 110 provides that “failure of counsel or of a party to comply with these 22 Rules or with any order of the Court may be grounds for imposition by the Court of any 23 and all sanctions . . . within the inherent power of the Court.” District courts have the 24 inherent power to control their dockets and “in the exercise of that power, they may 25 impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v. 26 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 27 prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, 28 or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d Dockets.Justia.com 1 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 2 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 3 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 4 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 5 (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 6 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local 7 rules). 8 In determining whether to dismiss an action for lack of prosecution, failure to obey 9 a Court order, or failure to comply with local rules, the Court must consider several 10 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need 11 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 12 favoring disposition of cases on their merits; and (5) the availability of less drastic 13 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 14 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 15 In the instant case, the Court finds that the public’s interest in expeditiously 16 resolving this litigation and the Court’s interest in managing the docket weigh in favor of 17 dismissal. The third factor, risk of prejudice to the defendant, also weighs in favor of 18 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 19 in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The 20 fourth factor -- public policy favoring disposition of cases on their merits -- is greatly 21 outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s 22 warning to a party that his failure to obey the court’s order will result in dismissal satisfies 23 the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; 24 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s Order expressly 25 stated: “...failure to meet [the August 25, 2011] deadline will result in dismissal of this 26 action for failure to prosecute.” (Order, ECF No. 25.) Thus, Plaintiff had adequate 27 warning that dismissal would result from his noncompliance with the Court’s Order. 28 Accordingly, it is RECOMMENDED that in the event that Plaintiff does not file a -2- 1 second amended complaint within thirty (30) days of entry of this Order, this matter be 2 DISMISSED by the District Judge. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 5 Within thirty days after being served with these findings and recommendations, any party 6 may file written objections with the court and serve a copy on all parties. Such a 7 document should be captioned “Objections to Magistrate Judge’s Findings and 8 Recommendations.” Any reply to the objections shall be served and filed within ten days 9 after service of the objections. The parties are advised that failure to file objections within 10 the specified time may waive the right to appeal the District Court's order. Martinez v. 11 Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 IT IS SO ORDERED. 14 Dated: ci4d6 September 19, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-
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