Mack v. Witcher, et al
Filing
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FINDINGS and RECOMMENDATION for Dismissal of Plaintiff's Complaint, signed by Magistrate Judge Michael J. Seng on 11/21/11. Referred to Judge O'Neill. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY E. MACK ,
Plaintiff,
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v.
M K WITCHER, et al.,
Defendants.
1:04-cv-05787-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION
FOR DISMISSAL OF PLAINTIFF’S
COMPLAINT
(ECF No. 31)
FOURTEEN DAY DEADLINE
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_______________________________/
Plaintiff Anthony E. Mack (“Plaintiff”) is a state prisoner proceeding pro se in a civil
rights action pursuant to 42 U.S.C. § 1983.
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On October 24, 2011, the Court issued an Order to Show Cause Why the Case
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Should Not be Dismissed for Failure to Comply with a Court Order and ordered Plaintiff
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to file a second amended complaint by November 7, 2011.
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November 7, 2011 deadline has passed and Plaintiff has not filed a second amended
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complaint or otherwise responded to the Court’s Order.
(ECF No. 31.) The
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Local Rule 110 provides that “failure of counsel or of a party to comply with these
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Rules or with any order of the Court may be grounds for imposition by the Court of any
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and all sanctions . . . within the inherent power of the Court.” District courts have the
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inherent power to control their dockets and “in the exercise of that power, they may
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impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v.
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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with
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prejudice, based on a party’s failure to prosecute an action, failure to obey a court order,
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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
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1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)
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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court
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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)
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(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,
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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local
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rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey
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a Court order, or failure to comply with local rules, the Court must consider several
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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need
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to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
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favoring disposition of cases on their merits; and (5) the availability of less drastic
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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833
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F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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In the instant case, the Court finds that the public’s interest in expeditiously
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resolving this litigation and the Court’s interest in managing the docket weigh in favor of
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dismissal. The third factor, risk of prejudice to the defendant, also weighs in favor of
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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay
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in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The
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fourth factor -- public policy favoring disposition of cases on their merits -- is greatly
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outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s
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warning to a party that his failure to obey the court’s order will result in dismissal satisfies
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the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;
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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s Order expressly
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stated: “Plaintiff is hereby on notice that failure to meet this deadline will result in
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dismissal of this action for failure to prosecute.” (Order, ECF No. 31.) Thus, Plaintiff had
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adequate warning that dismissal would result from his noncompliance with the Court’s
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Order.
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Accordingly, it is RECOMMENDED that in the event that Plaintiff does not file a
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second amended complaint within fourteen (14) days of entry of this Order, this matter
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be DISMISSED by the District Judge.
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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)(1).
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Within thirty days after being served with these findings and recommendations, any party
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may file written objections with the court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Any reply to the objections shall be served and filed within ten days
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after service of the objections. The parties are advised that failure to file objections within
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the specified time may waive the right to appeal the District Court's order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
November 21, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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