(PC) Ojeda v. Adams, No. 1:2005cv01173 - Document 10 (E.D. Cal. 2005)
Court Description: FINDINGS and RECOMMENDATIONS recommending action be dismissed for failure to obey a court order re 1 Complaint filed by Armando Ojeda. Motion referred to Judge Ishii. Objections to F&R due by 1/10/2006. Signed by Judge Lawrence J. O'Neill on 12/8/05. (Keeler, P)
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(PC) Ojeda v. Adams Doc. 10 Case 1:05-cv-01173-AWI-LJO Document 10 Filed 12/08/2005 Page 1 of 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH C. ZARCO, 12 Plaintiff, 13 vs. 14 J. WOODFORD, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:05-CV-01163-OWW-LJO-P FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER 17 18 On October 18, 2005, the court issued an order for plaintiff to submit a certified 19 copy of his prison trust account statement or pay the $250.00 filing fee, within thirty days of the 20 date of service of the order. The thirty day period has now expired, and plaintiff has not paid the 21 filing fee or otherwise responded to the court's order. 22 Local Rule 11-110 provides that “failure of counsel or of a party to comply with 23 these Local Rules or with any order of the Court may be grounds for the imposition by the Court 24 of any and all sanctions . . . within the inherent power of the Court.” District courts have the 25 inherent power to control their dockets and “in the exercise of that power, they may impose 26 1 Dockets.Justia.com Case 1:05-cv-01173-AWI-LJO Document 10 Filed 12/08/2005 Page 2 of 3 1 sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 2 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a 3 party’s failure to prosecute an action, failure to obey a court order, or failure to comply with local 4 rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance 5 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure 6 to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 7 1440-41 (9th Cir. 1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs 8 to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 9 1987)(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 10 1424 (9th Cir. 1986)(dismissal for failure to lack of prosecution and failure to comply with local 11 rules). 12 In determining whether to dismiss an action for lack of prosecution, failure to 13 obey a court order, or failure to comply with local rules, the court must consider several factors: 14 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 15 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 16 cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 17 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 18 Ghazali, 46 F.3d at 53. 19 In the instant case, the court finds that the public’s interest in expeditiously 20 resolving this litigation and the court’s interest in managing the docket weigh in favor of 21 dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, 22 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 23 action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public 24 policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor 25 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey the 26 2 Case 1:05-cv-01173-AWI-LJO Document 10 Filed 12/08/2005 Page 3 of 3 1 court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. 2 Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The 3 court’s order requiring plaintiff to submit a certified copy of his prison trust account statement 4 expressly stated: “Failure to comply with this order will result in a recommendation that this 5 action be dismissed." Thus, plaintiff had adequate warning that dismissal would result from his 6 noncompliance with the court’s order. Accordingly, the court HEREBY RECOMMENDS that this action be dismissed 7 8 based on plaintiff's failure to obey the court’s order of October 18, 2005. These findings and recommendations are submitted to the United States District 9 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 11 thirty days after being served with these findings and recommendations, plaintiff may file written 12 objections with the court. Such a document should be captioned "Objections to Magistrate 13 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 14 within the specified time may waive the right to appeal the District Court's order. Martinez v. 15 Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 IT IS SO ORDERED. 17 Dated: b6edp0 December 8, 2005 /s/ Lawrence J. O'Neill UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 3
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