(PC) Mirelez Mendoza v. Bachara et al, No. 1:2012cv01185 - Document 9 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that this 1 Action be Dismissed based on Plaintiff's Failure to Obey a Court Order signed by Magistrate Judge Michael J. Seng on 12/21/2012. Referred to Judge O'Neill; Objections to F&R due by 1/14/2013. (Flores, E)
Download PDF
<![CDATA[
(PC) Mirelez Mendoza v. Bachara et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ISRAEL MIRELEZ MENDOZA, Plaintiff, 12 CASE NO: 12-cv-1185-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF PLAINTIFF’S ACTION FOR FAILURE TO PROSECUTE 13 v. 14 (ECF No. 6) 15 BACHARA, et al. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 Defendants. 17 / 18 Plaintiff Jose Israel Mirelez Mendoza (“Plaintiff”) is a civil detainee proceeding pro 19 se in this civil rights action pursuant to 42 U.S.C. § 1983. 20 The Court, on July 23, 2012, ordered Plaintiff to either consent or decline 21 Magistrate Judge jurisdiction not later than August 27, 2012. (ECF No. 3.) Plaintiff failed 22 to do either or otherwise respond. The Court on September 10, 2012, gave him a further 23 opportunity and ordered him to consent or decline by October 15, 2012. (ECF No. 5.) He 24 did not do so or request an extension of time to do so. 25 On October 31, 2012, the Court issued an order giving Plaintiff one last opportunity 26 to consent or decline Magistrate Judge jurisdiction. (ECF No. 6.) Plaintiff was to respond 27 by November 14, 2012. (Id.) November 14, 2012, has passed without Plaintiff complying 28 Dockets.Justia.com 1 with or otherwise responding to the Court’s Order. 2 Local Rule 110 provides that “failure of counsel or of a party to comply with these 3 Rules or with any order of the Court may be grounds for imposition by the Court of any 4 and all sanctions . . . within the inherent power of the Court.” District courts have the 5 inherent power to control their dockets and “in the exercise of that power, they may 6 impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v. 7 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 8 prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, 9 or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 10 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 11 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 12 amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 13 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 14 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 15 (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 16 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local 17 rules). 18 In determining whether to dismiss an action for lack of prosecution, failure to obey 19 a court order, or failure to comply with local rules, the Court must consider several factors: 20 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to 21 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 22 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 23 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 24 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 25 In the instant case, the Court finds that the public’s interest in expeditiously 26 resolving this litigation and the Court’s interest in managing its docket weigh in favor of 27 28 -2- 1 dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of 2 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 3 in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The 4 fourth factor -- public policy favoring disposition of cases on their merits -- is greatly 5 outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s 6 warning to a party that his failure to obey the court’s order will result in dismissal satisfies 7 the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; 8 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s Order expressly 9 stated: “Failure to meet this deadline will result in dismissal of this action.” (ECF No. 6.) 10 Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance 11 with the Court’s Order. Based on the foregoing, the Court RECOMMENDS that this action be DISMISSED 12 13 based on Plaintiff’s failure to obey a court order. 14 These Findings and Recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 16 Within fourteen (14) days after being served with these Findings and Recommendations, 17 any party may file written objections with the Court and serve a copy on all parties. Such 18 a document should be captioned "Objections to Magistrate Judge's Findings and 19 Recommendations." The parties are advised that failure to file objections within the 20 specified time may waive the right to appeal the District Court's order. Martinez v. Y1 st, 21 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 IT IS SO ORDERED. 26 Dated: ci4d6 Decem ber 21, 2012 /s/ 27 28 Michael J. Seng UNITED STATES MAGISTRATE JUDGE -3-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
