(PC) Hazeltine v. Tuolumne County, et al, No. 1:2004cv06712 - Document 19 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Jennifer L. Thurston on 1/5/2011, Recommending That This 6 Action be DISMISSED Without Prejudice for Plaintiffs Failure to Prosecute; Referred to Judge O'Neill. Objections to F&R due by 1/28/2011. (Marrujo, C)
Download PDF
<![CDATA[
(PC) Hazeltine v. Tuolumne County, et al Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICK A. HAZELTINE, 12 Plaintiff, 13 14 Case No. 1:04-cv-06712 LJO JLT (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION BE DISMISSED FOR PLAINTIFF’S FAILURE TO PROSECUTE vs. TUOLUMNE COUNTY BOARD OF SUPERVISORS, et al., 15 16 Defendants. ________________________________/ 17 Plaintiff is a civil detainee proceeding pro se and in forma pauperis with a civil rights action 18 pursuant to 42 U.S.C. § 1983. By order filed August 31, 2010, the Court directed Plaintiff to, within 19 thirty days, either file an amended complaint curing the deficiencies identified by the Court in its 20 screening order or notify the Court that he wished to proceed only against Defendants Carroll, 21 Giannini, and Lackey for the alleged use of excessive force in violation of the Fourteenth 22 Amendment. Plaintiff was warned that his failure to comply with the Court’s order would result in 23 a recommendation that his action be dismissed. (Doc. 16) The thirty-day period expired, and 24 Plaintiff failed to respond to the Court’s order. 25 On November 30, 2010, the Court issued an order (Doc. 18) directing Plaintiff, within 26 twenty-one days, to show cause why this action should not be dismissed for his failure to prosecute. 27 See Fed. R. Civ. P. 41(b). Once again, the Court advised Plaintiff that if he wished to proceed with 28 the action, he must either file an amended complaint curing the deficiencies identified by the Court 1 Dockets.Justia.com 1 in its August 31, 2010 screening order or notify the Court that he wished to proceed only on the 2 claims found cognizable by the Court in its screening order. Plaintiff was firmly cautioned, once 3 again, that his failure to comply with the Court’s order would result in a recommendation that this 4 action be dismissed. (Doc. 18 at 2) Nevertheless, the twenty-one day period has expired and again 5 Plaintiff has failed to respond to the Court’s order. 6 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 7 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 8 authorized by statute or Rule or within the inherent power of the Court.” District courts have the 9 inherent power to control their dockets and “in the exercise of that power, they may impose 10 sanctions, including where appropriate . . . dismissal of the case.” Thompson v. Housing Authority, 11 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s 12 failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, 13 e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local 14 rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply 15 with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 16 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 17 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for 18 lack of prosecution and failure to comply with local rules). 19 In determining whether to dismiss an action for lack of prosecution, failure to obey a court 20 order, or failure to comply with local rules, the court must consider several factors, including: (1) 21 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 22 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 23 merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson 24 v. Duncan, 779 F.2d 1421, 1423-24 (9th Cir. 1986); Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 25 1260-61; Ghazali, 46 F.3d at 53. 26 With respect to the first two factors – the public’s interest in expeditiously resolving litigation 27 and the Court’s interest in managing its docket – the Court finds these factors indicate that dismissal 28 is appropriate and warranted. The case has been pending for more than six years. Now when it is 2 1 ready to proceed, Plaintiff has absented himself from the process and refuses to take the necessary 2 steps to prosecute his claims. 3 The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal because 4 a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 5 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). In part due to the Court’s crushing case 6 load, this matter has been pending since 2004. However, for more than a year, this Court has turned 7 its attention to Plaintiff’s case and, by all accounts, Plaintiff has abandoned his responsibility to this 8 matter. The Court has attempted to prompt Plaintiff into action with its orders, most notably its 9 Order to Show Cause. (Doc. 18) However, Plaintiff has failed to respond to those orders in any 10 fashion. Under these facts, the Court finds Plaintiff’s delay in prosecution of this action is 11 unreasonable. 12 Alternatives, less drastic than dismissal, do not appear to be realistic. Because Plaintiff is 13 proceeding in forma pauperis, monetary sanctions are not a viable option. Likewise, given the 14 history of this case, the Court has little confidence that another warning or further admonitions would 15 result in Plaintiff taking action. The Court has already warned Plaintiff that his failure to respond 16 would result in the dismissal of this action1 but they have not spurred Plaintiff into action. (Docs. 17 16, 18). In fact, Plaintiff has failed to have any contact with the Court whatsoever. The Court finds 18 that, under the circumstances of the present case, there is no reasonable alternative to dismissal. 19 The Court recognizes that public policy favors disposition of cases on the merits and has 20 factored this consideration into its decision. However, securing a disposition on the merits in this 21 case will likely come only at a price that substantially compromises the public’s interest in 22 expeditious resolution of this litigation, the Court’s interest in managing its docket and Defendant’s 23 interest in a legal process free from unreasonable delay. Consequently, the Court finds that this 24 factor – public policy favoring disposition on the merits – is greatly outweighed by the other factors 25 favoring dismissal of this action. 26 27 28 1 The Court’s warning to a party that his failure to obey the Court’s order is sufficient to satisfy the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. 3 1 2 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed without prejudice for Plaintiff’s failure to prosecute. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 5 Local Rules of Practice for the United States District Court, Eastern District of California. Within 6 twenty-one days after being served with these findings and recommendations, Plaintiff may file 7 written objections with the Court. Such a document should be captioned “Objections to Magistrate 8 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 9 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 10 F.2d 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: January 5, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
]]>
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.
