(PC) Gonzales v. Yates, No. 1:2005cv01070 - Document 18 (E.D. Cal. 2008)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED signed by Magistrate Judge Dennis L. Beck on 2/1/2008. Motion referred to Judge Lawrence J. O'Neill, Objections to F&R due by 2/14/2008. (Esteves, C)

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(PC) Gonzales v. Yates Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK GONZALES, 12 1:05-CV-1070 LJO DLB PC Plaintiff, 13 vs. 14 FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER J. YATES, et al., 15 OBJECTIONS, IF ANY, DUE IN TEN DAYS Defendants. / 16 17 Plaintiff is proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. On 18 February 2, 2007, the court issued an order requiring plaintiff to submit an application to proceed in 19 forma pauperis or pay the filing fee within thirty days of the date of service of the order. More than 20 thirty days have passed and plaintiff has not complied with or otherwise responded to the court’s order. 21 Local Rule 11-110 provides that “failure of counsel or of a party to comply with these 22 Local Rules or with any order of the Court may be grounds for the imposition by the Court of any and 23 all sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 24 control their dockets and “in the exercise of that power, they may impose sanctions including, where 25 appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). 26 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure 27 to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53- 28 1 Dockets.Justia.com 1 54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 2 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 3 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with 4 local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 5 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. 6 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to lack of prosecution and failure to 7 comply with local rules). In determining whether to dismiss an action for lack of prosecution, failure 8 to obey a court order, or failure to comply with local rules, the court must consider several factors: (1) 9 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 10 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 11 and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d 12 at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 13 In the instant case, the court finds that the public’s interest in expeditiously resolving this 14 litigation and the court’s interest in managing the docket weigh in favor of dismissal, as this case has 15 been pending since August 23, 2005. The third factor, risk of prejudice to defendants, also weighs in 16 favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 17 prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 18 public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor 19 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey the court’s 20 order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. 21 Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The court’s order 22 requiring plaintiff to submit an application to proceed in forma pauperis expressly stated: “Failure to 23 comply with this order will result in a recommendation that this action be dismissed." Thus, plaintiff 24 had adequate warning that dismissal would result from his noncompliance with the court’s order. 25 26 27 28 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on plaintiff's failure to obey the court’s order of February 2, 2007. These Findings and Recommendations are submitted to the United States District Judge 2 1 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten (10) days after 2 being served with these Findings and Recommendations, plaintiff may file written objections with the 3 court. 4 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 5 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 Such a document should be captioned “Objections to Magistrate Judge’s Findings and IT IS SO ORDERED. 7 Dated: 3c0hj8 February 1, 2008 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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