(PC) Benyamini v. Johnson et al, No. 1:2007cv00907 - Document 36 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to Obey a Court Order 32 , signed by Magistrate Judge Dennis L. Beck on 6/30/2010. Referred to Judge O'Neill. (Objections to F&R due by 7/23/2010)(Marrujo, C)
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(PC) Benyamini v. Johnson et al Doc. 36 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ROBERT P. BENYAMINI, 9 10 11 CASE NO. 1:07-CV-00907-LJO-DLB (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO OBEY A COURT ORDER v. L. JOHNSON, et al., (ECF NO. 32) 12 Defendants. OBJECTIONS DUE WITHIN 20 DAYS 13 / 14 15 Findings and Recommendations 16 Plaintiff Robert P. Benyamini (“Plaintiff”) is a California state prisoner proceeding pro se 17 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On April 16, 2010, 18 the Court issued an order requiring Plaintiff to submit service documents for the United States 19 Marshal to effect service of process. (ECF No. 32.) Plaintiff has failed to comply or otherwise 20 respond to this order. 21 Local Rule 110 provides that “failure of counsel or of a party to comply with these Local 22 Rules or with any order of the Court may be grounds for the imposition by the Court of any and 23 all sanctions . . . within the inherent power of the Court.” District courts have the inherent power 24 to control their dockets and “in the exercise of that power, they may impose sanctions including, 25 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th 26 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 27 an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 28 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 1 Dockets.Justia.com 1 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 2 order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 3 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 4 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 5 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 6 1986) (dismissal for failure to lack of prosecution and failure to comply with local rules). In 7 determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or 8 failure to comply with local rules, the Court must consider several factors: (1) the public’s 9 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the 10 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 11 merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 12 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 13 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. The third 16 factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of 17 injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air 18 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition 19 of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed 20 herein. Finally, a court’s warning to a party that his failure to obey the court’s order will result in 21 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 22 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. Plaintiff was warned that “[t]he failure to 23 comply with this order will result in a recommendation that this action be dismissed for failure to 24 obey a court order.” This constitutes sufficient consideration of alternatives. 25 26 27 28 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED based on Plaintiff’s failure to obey the Court’s order of April 16, 2010. These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty 2 1 (20) days after being served with these Findings and Recommendations, the parties may file 2 written objections with the court. Such a document should be captioned “Objections to 3 Magistrate Judge's Findings and Recommendations.” The parties are advised that failure to file 4 objections within the specified time may waive the right to appeal the District Court's order. 5 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 IT IS SO ORDERED. 7 Dated: 77e0d6 June 30, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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