(PS) Holmes v. Bossie, No. 1:2015cv01481 - Document 9 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, for Plaintiff's Failure to Prosecute re 1 Complaint signed by Magistrate Judge Stanley A. Boone on 12/1/2015. Referred to Judge Mueller. Objections to F&R due within thirty (30) days. (Jessen, A)
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(PS) Holmes v. Bossie Doc. 9 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CLARENCE HOLMES, JR., Case No. 1:15-cv-1481-KJM-SAB 10 Plaintiff, 11 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING THIS ACTION FOR FAILURE TO PROSECUTE 12 V. BOSSIE, (ECF No. 4) 13 Defendant. THIRTY DAY DEADLINE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. PROCEDURAL BACKGROUND On September 30, 2015, Plaintiff Clarence Holmes, Jr., proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff did not pay the filing fee or file an application to proceed in forma pauperis. On October 14, 2015, an order issued striking the complaint from the record for lack of signature. The order required Plaintiff to file a signed complaint and either pay the filing fee or file an application to proceed in forma pauperis within thirty days. On November 2, 2015, Plaintiff filed a motion to proceed in forma pauperis which was granted. More than thirty days have passed and Plaintiff has not filed a signed complaint in compliance with the October 26, 2015 order. II. DISCUSSION A court may dismiss an action based on a party’s failure to prosecute, failure to obey a 28 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 court order, 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 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). In determining whether to dismiss an action for failure to comply with a pretrial order, the Court must weigh “(1) the public’s interest in expeditious resolution of 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 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted). These factors guide a court in deciding what to do, and are not conditions that must be met in order for a court to take action. Id. (citation omitted). In this instance the public’s interest in expeditious resolution of the litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff was ordered to file a signed complaint that complied with the Federal Rules of Civil Procedure within thirty days of October 26, 2015. Plaintiff has neither filed a signed complaint nor requested an extension of time to comply with the order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s ability to move this action towards disposition, and indicates that Plaintiff does not intend to diligently litigate this action. Since it appears that Plaintiff does not intend to litigate this action diligently there arises a rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). While this risk of prejudice may be rebutted if Plaintiff offers an excuse for the delay, In re Eisen, 31 F.3d at 1453, Plaintiff has not responded to the order requiring him to file a signed complaint. The risk of prejudice to the defendants also weighs in favor of 28 2 1 dismissal. 2 3 4 5 6 The pu ublic policy in favor of deciding cas on their merits is gr ses reatly outwe eighed by the e fac ctors in favo of dismis or ssal. It is Plaintiff’s re sponsibility to move th action forward. This P his ac ction can pro oceed no fur rther withou Plaintiff’s cooperation and comp ut s pliance with the order at a iss sue, and the action can e nnot simply remain idle on the Cou e urt’s docket unprosecu t, uted. In this instance, the fourth factor does not outweigh Plain f ntiff’s failure to comply with the Court’s orders. e 7 8 9 10 11 12 Finally a court’s warning to a party that t y, w their failure to obey the court’s order will resul e lt in dismissal satisfies the “consideration of altern “ natives” requ uirement. Fe erdik, 963 F F.2d at 1262 2; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The October 2 2015 ord requiring M H t 26, der g Plaintiff to fil a signed complaint ex le c xpressly stat ted: “The fa ailure to com mply with th order wil his ll result in dism missal of this action, wi s ithout prejud dice.” (ECF No. 4 at 2.) Thus, Plaintiff had F d ad dequate warn ning that dism missal would result from his noncom d m mpliance wit the Court’ order. th ’s 13 14 Accord dingly, it is HEREBY RECOMMEN R NDED that this action b DISMISS be SED, withou ut pr rejudice, for Plaintiff’s fa ailure to prosecute. 15 16 17 18 19 20 21 22 23 These findings and recommen d ndations are submitted t the distric judge assigned to this to ct ac ction, pursua to 28 U.S § 636(b)(1)(B) and this Court’s Local Rule 304. Withi thirty (30) ant S.C. s e in da of servic of this rec ays ce commendati ion, any par may file written obje rty ections to th hese findings an recommen nd ndations with the Court and serve a copy on all parties. Suc a docume should be ch ent e ca aptioned “Ob bjections to Magistrate Judge’s Find M J dings and Re ecommendati ions.” The d district judge e wi review the magistra judge’s findings an recomme ill t ate nd endations pu ursuant to 2 U.S.C. § 28 63 36(b)(1)(C). The parties are advised that failure to file objections within the specifi time may s d e n ied y result in the waiver of righ on appea Wilkerso v. Wheele 772 F.3d 834, 839 (9t Cir. 2014) w hts al. on er, th (ci iting Baxter v. Sullivan, 923 F.2d 13 1394 (9 Cir. 1991 391, 9th 1)). 24 25 26 IT IS SO ORD T DERED. ated: Da Dec cember 1, 2015 U UNITED ST TATES MAGISTRATE JUDGE E 27 28 3
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