Richardson v. Fresno County Public Defender's Office, No. 1:2005cv01422 - Document 5 (E.D. Cal. 2005)
Court Description: VACATED BY 11FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED without prejudice on grounds plaintiff has failed to: (1)submit the $250 filing fee or an application to proceed without prepayment of fees; (2) to comply with this court's order; and (3) diligently prosecute this action. Referred to Judge Van Sickle, Objections to F&R due by 12/20/2005. Signed by Judge Lawrence J. O'Neill on 12/9/05. (Robles, S)
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Richardson v. Fresno County Public Defender's Office Doc. 5 Case 1:05-cv-01422-FVS-LJO Document 5 Filed 12/12/2005 Page 1 of 3 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ALLEN RICHARDSON, 11 CASE NO. CV-F-05-1422 FVS LJO Plaintiff, 12 vs. 13 FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION B. GARCIA, et al., 14 Defendants. / 15 16 BACKGROUND 17 Plaintiff Allen Richardson (“plaintiff”) proceeds pro se in this action. This Court issued its 18 November 22, 2005 order (“November 22 order”) to require plaintiff, no later than December 7, 2005, 19 to the pay the $250 filing fee for this action or to submit a fully completed in forma pauperis application 20 to demonstrate he is entitled to proceed without prepayment of fees. The November 22 order 21 admonished plaintiff that “[f]ailure to timely comply with this order will result in a recommendation 22 to dismiss this action. This Court will take no action on plaintiff’s claims until plaintiff complies 23 with this order.” (Bold in original.) Plaintiff failed timely to submit the $250 filing fee or an 24 application to proceed without prepayment of fees. 25 DISCUSSION 26 Failure To Comply With Orders 27 This Court’s Local Rule 11-110 provides that “. . . failure of counsel or of a party to comply with 28 these Local Rules or with any order of the Court may be grounds for the imposition by the Court of any 1 Dockets.Justia.com Case 1:05-cv-01422-FVS-LJO Document 5 Filed 12/12/2005 Page 2 of 3 1 and all sanctions . . . within the inherent power of the Court.” District courts have inherent power to 2 control their dockets and “in the exercise of that power, they may impose sanctions including, where 3 appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). 4 A court may dismiss an action, with prejudice, based on a party’s failure to obey a court order or local 5 rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with 6 local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply 7 with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 8 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised 9 of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 10 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 11 of prosecution and failure to comply with local rules). 12 In determining whether to dismiss an action for failure to comply with a court order or local rules 13 or for lack of prosecution, a court must consider several factors: (1) the public’s interest in expeditious 14 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendant; 15 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 16 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 17 Ferdik, 963 F.2d at 1260-1261; Ghazali, 46 F.3d at 53. 18 In this case, the Court finds that the public’s interest in expeditiously resolving this litigation and 19 the Court’s interest in managing the docket weigh in favor of dismissal as plaintiff has not advanced this 20 action with his unexplained failure to submit the filing fee or an application to proceed without 21 prepayment of fees. The third factor -- risk of prejudice to defendant -- also weighs in favor of 22 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting 23 an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy 24 favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal 25 discussed herein. Finally, a court’s warning to a party that his failure to obey the court’s order will result 26 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 27 833 F.2d at 132-133; Henderson, 779 F.2d at 1424. The November 22 order admonished plaintiff that 28 “[f]ailure to timely comply with this order will result in a recommendation to dismiss this action. 2 Case 1:05-cv-01422-FVS-LJO Document 5 Filed 12/12/2005 Page 3 of 3 1 This Court will take no action on plaintiff’s claims until plaintiff complies with this order.” (Bold 2 in original.) Thus, plaintiff received adequate warning that dismissal will result from noncompliance 3 with this Court’s order and failure to prosecute this action. Quite simply, plaintiff has failed to comply 4 with this Court’s order or to meaningfully and intelligently respond. 5 CONCLUSION AND RECOMMENDATION 6 Accordingly, this Court RECOMMENDS to DISMISS this action without prejudice on grounds 7 plaintiff has failed to: (1) submit the $250 filing fee or an application to proceed without prepayment 8 of fees; (2) comply with this Court’s order; and (3) diligently prosecute this action. 9 These findings and recommendations are submitted to the district judge assigned to this action, 10 pursuant to 28 U.S.C. § 636(b) and this Court’s Local Rule 72-304. No later than December 20, 2005, 11 plaintiff may file written objections with the Court and serve a copy on the magistrate judge in 12 compliance with this Court’s Local Rule 72-304(b). Such a document should be captioned "Objections 13 to Magistrate Judge's Findings and Recommendations." The district judge will then review the 14 magistrate judge’s ruling pursuant to 28 U.S.C. § 636(b). Plaintiff is advised that failure to file 15 objections within the specified time may waive the right to appeal the district court's order. Martinez 16 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 Dated: 66h44d December 9, 2005 /s/ Lawrence J. O'Neill UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3
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