(PC) Rodriguez v. Lewis et al, No. 1:2015cv01215 - Document 11 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 12/15/2015 recommending that action be dismissed for failure to prosecute and to obey a court order. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-days. (Lundstrom, T)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES HENRY RODRIGUEZ, Case No. 1:15-cv-01215-LJO-BAM-PC Plaintiff, 12 13 v. 14 FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR FAILURE TO PROSECUTE AND TO OBEY A COURT ORDER C. LEWIS, et al., OBJECTIONS DUE IN 14 DAYS 15 Defendants. 16 17 Plaintiff is a Fresno County Jail inmate proceeding pro se and in forma pauperis pursuant 18 to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(1)(B) and Local Rule 302. 20 On September 9, 2015, the Court entered denying Plaintiff’s motion for the appointment 21 of counsel. On September 23, 2015, the order was returned by the U.S. Postal Service as 22 undeliverable. A failure to keep the court informed of Plaintiff’s address of record is grounds for 23 dismissal. The Local Rules require a pro se Plaintiff to keep the court advised of his or her 24 address of record. A failure to follow the Local Rules is a ground for dismissal. 25 Local Rule 183 (b) provides that “a party appearing in propria persona shall keep the 26 Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff 27 in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails 28 to notify the Court and opposing parties within sixty-three (63) dates thereafter of a current 1 1 address, the Court may dismiss the action without prejudice for failure to prosecute.” A court 2 may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to 3 obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 4 53-54 (9th Cir. 1995)(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 5 1258, 1260-61 (9th Cir. 1992)(dismissal for failure to comply with an order requiring 6 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1998)(dismissal for 7 failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 8 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal for failure to comply 9 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)(dismissal for lack 10 of prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for lack of prosecution, failure to obey a 12 court order, or failure to comply with local rules, the Court must consider several factors: (1) the 13 public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 14 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 15 their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 16 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 17 46 F.3d at 53. 18 Here, the Court finds that the public’s interest in expeditiously resolving this litigation 19 and the Court’s interest in managing the docket weigh in favor of dismissal. The third factor, 20 risk of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury 21 arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air 22 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition 23 of cases on the merits – is greatly outweighed by the factors in favor of dismissal discussed 24 herein. Finally, a court’s warning to a party that a failure to obey a court order will result in 25 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 26 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. 27 Accordingly, IT IS RECOMMENDED that this action be dismissed for Plaintiff’s failure 28 to comply with the Local Rules. 2 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within 14 days 3 after being served with these findings and recommendations, Plaintiff may file written objections 4 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 6 specified time waives all objections to the judge’s findings of fact. See Turner v. Duncan 158 7 F.3d 449, 455 (9th Cir. 1988). Failure to file objections within the specified time may waive the 8 right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 IT IS SO ORDERED. Dated: /s/ Barbara December 15, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.