(PC) Alexander v. Tilton, No. 1:2007cv00759 - Document 22 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending Dismissal of 1 Action for Failure to Obey a Court 8 Order; Objections Due Within Fifteen Days signed by Magistrate Judge Dennis L. Beck on 7/20/2009. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 8/7/2009. (Sant Agata, S)
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(PC) Alexander v. Tilton Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LARRY C. ALEXANDER, 10 11 12 13 CASE NO. 1:07-cv-00759-LJO-DLB PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO OBEY A COURT ORDER v. JAMES E. TILTON, et al., (Doc. 8) Defendants. OBJECTIONS DUE WITHIN FIFTEEN DAYS / 14 15 Plaintiff Larry C. Alexander (“Plaintiff”) is a state prisoner proceeding pro se in this civil 16 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed an amended complaint on July 28, 2008. 17 On February 24, 2009, the Court issued an order requiring Plaintiff, within thirty days, to either file 18 an amended complaint curing the deficiencies identified by the Court or notify the Court in writing 19 that he does not wish to file an amended complaint and is willing to proceed only on the claims 20 found to be cognizable. Despite having obtained two extensions of time, Plaintiff still has not 21 complied with or otherwise responded to the Court’s February 24, 2009 order. 22 Local Rule 11-110 provides that “failure of counsel or of a party to comply with these Local 23 Rules or with any order of the Court may be grounds for the imposition by the Court of any and all 24 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 25 control their dockets and “in the exercise of that power, they may impose sanctions including, where 26 appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 27 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 28 action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 1 Dockets.Justia.com 1 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 2 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 3 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 4 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 5 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 6 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 7 failure to lack of prosecution and failure to comply with local rules). In determining whether to 8 dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local 9 rules, the Court must consider several factors: (1) the public’s interest in expeditious resolution of 10 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 11 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 12 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 13 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 14 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 15 litigation and the Court’s interest in managing the docket weigh in favor of dismissal, as this case 16 has been pending since May 23, 2007. The third factor, risk of prejudice to defendants, also weighs 17 in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay 18 in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 19 factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed by the 20 factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure 21 to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” 22 requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d 23 at 1424. The Court’s order expressly stated: “If Plaintiff fails to comply with this order, the Court 24 will dismiss this action for failure to obey a court order.” Thus, Plaintiff had adequate warning that 25 dismissal would result from his noncompliance with the Court’s order. 26 27 28 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, without prejudice, based on Plaintiff’s failure to obey the Court’s order of February 24, 2009. These Findings and Recommendations are submitted to the United States District Judge 2 1 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) 2 days after being served with these Findings and Recommendations, Plaintiff may file written 3 objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 4 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 5 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 6 1153 (9th Cir. 1991). 7 8 IT IS SO ORDERED. 9 Dated: 3b142a July 20, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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