Thomas v. Fresno City College et al, No. 1:2015cv00826 - Document 20 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of this Action for Failure to Obey a Court Order signed by Magistrate Judge Barbara A. McAuliffe on 3/23/2016. Referred to Judge Dale A. Drozd. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERMANY DEVON THOMAS, Plaintiff, 12 13 14 v. FRESNO CITY COLLEGE, et al., Case No. 1:15-cv-00826-DAD-BAM FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF THIS ACTION FOR FAILURE TO OBEY A COURT ORDER Defendants. 15 16 17 Plaintiff Jermany Devon Thomas (“Plaintiff”), proceeding pro se and in forma pauperis, 18 initiated this civil action on June 1, 2015. (Doc. 1). On December 2, 2015, the Court issued an 19 order dismissing Plaintiff’s first amended complaint with leave to amend. (Doc. 13). Plaintiff 20 filed his second amended complaint on January 4, 2016. (Doc. 17). Before the Court completed 21 its screening of the second amended complaint, Plaintiff filed a motion for leave to file a 22 supplemental complaint. (Doc. 18). On February 12, 2016, the Court granted Plaintiff’s motion 23 and directed him to file a third amended complaint within thirty (30) days of the service of the 24 order. (Doc. 19). More than thirty days have passed and Plaintiff has failed to comply with this 25 Court’s order. 26 DISCUSSION 27 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 28 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 1 1 within the inherent power of the Court.” District courts have the inherent power to control their 2 dockets and “[i]n the exercise of that power, they may impose sanctions including, where 3 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 4 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 5 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 6 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 7 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 8 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for 9 failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 10 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 11 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 12 of prosecution and failure to comply with local rules). In determining whether to dismiss an 13 action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, 14 the court must consider several factors: (1) the public’s interest in expeditious resolution of 15 16 17 18 19 20 21 22 23 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. In the instant case, the Court finds that the public’s interest in expeditiously resolving this litigation and the Court’s interest in managing the docket weigh in favor of dismissal because there is no indication that Plaintiff intends to prosecute this action. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, 24 25 26 27 is greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order directing Plaintiff to file his third amended complaint was clear 28 2 1 that dismissal would result from non-compliance with the Court’s order. (Doc. 19 at 3). 2 3 4 5 6 7 8 9 10 11 12 CONCLUSION AND RECOMMENDATION Based on the above, IT IS HEREBY RECOMMENDED that this action be DISMISSED for Plaintiff’s failure to comply with a court order. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IT IS SO ORDERED. Dated: /s/ Barbara March 23, 2016 16 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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