Roll et al v. California Department of Corrections and Rehabilitation et al, No. 1:2008cv01716 - Document 19 (E.D. Cal. 2009)
Court Description: {VACATED per Order 22 .} FINDINGS and RECOMMENDATIONS recommending that the 17 Action be Dismissed for Plaintiff's Failure to Follow the Court's Order signed by Magistrate Judge Dennis L. Beck on 7/14/2009. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 8/17/2009. (Sant Agata, S) Modified on 8/3/2009 (Esteves, C).
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Roll et al v. California Department of Corrections and Rehabilitation et al Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 MARK ROLL, 9 10 Plaintiff, 11 v. 12 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 14 15 Defendants. 16 ) 1:08cv1716 LJO DLB ) ) ) FINDINGS AND RECOMMENDATION ) REGARDING DISMISSAL OF ACTION ) ) ) ) ) ) ) ) ) ) ) 17 Plaintiff Mark Roll (“Plaintiff”), proceeding pro se and in forma pauperis, filed the 18 instant action on November 4, 2008. He filed a Second Amended Complaint on May 1, 2009. 19 On May 27, 2009, the Court dismissed his complaint and allowed Plaintiff to file an amended 20 complaint within thirty days. Plaintiff has not filed an amended complaint or otherwise 21 contacted the Court. 22 DISCUSSION 23 Local Rule 11-110 provides that “failure of counsel or of a party to comply with these 24 Local Rules or with any order of the Court may be grounds for the imposition by the Court of any 25 and all sanctions . . . within the inherent power of the Court.” District courts have the inherent 26 power to control their dockets and “in the exercise of that power, they may impose sanctions 27 including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 28 1 Dockets.Justia.com 1 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s 2 failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. 3 See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with 4 local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 5 comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440- 6 41 (9th Cir. 1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs to 7 keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 8 1987)(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 9 1424 (9th Cir. 1986)(dismissal for failure to lack of prosecution and failure to comply with local 10 11 rules). In determining whether to dismiss an action for lack of prosecution, failure to obey a 12 court order, or failure to comply with local rules, the court must consider several factors: (1) the 13 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 14 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 15 their merits; and, (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 16 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 17 46 F.3d at 53. 18 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 19 litigation and the court’s interest in managing the docket weigh in favor of dismissal. This case 20 has been pending since November 4, 2008. The third factor, risk of prejudice to defendants, also 21 weighs in favor of dismissal, since a presumption of injury arises from the occurrence of 22 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 23 1976). The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly 24 outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s warning to a 25 party that his failure to obey the court’s order will result in dismissal satisfies the “consideration 26 of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; 27 Henderson, 779 F.2d at 1424. The Court’s Order Dismissing the Complaint with Leave to 28 Amend expressly stated that this was Plaintiff’s final opportunity, and that failure to respond 2 1 would result in a recommendation that the action be dismissed, with prejudice, for failure to state 2 a claim upon which relief may be granted. Thus, Plaintiff had adequate warning that dismissal 3 would result from non-compliance with the Court’s order(s). 4 RECOMMENDATION 5 Accordingly, the Court RECOMMENDS that the action be dismissed for Plaintiff’s 6 failure to follow the Court’s order. 7 These Findings and Recommendations are submitted to the Honorable Lawrence J. 8 O’Neill, United States District Court Judge, pursuant to the provisions of 28 U.S.C. 9 § 636(b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District 10 Court, Eastern District of California. Within thirty (30) days after being served with a copy, any 11 party may file written objections with the court and serve a copy on all parties. Such a document 12 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 13 Replies to the objections shall be served and filed within ten (10) court days (plus three days if 14 served by mail) after service of the objections. The Court will then review the Magistrate 15 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)©. The parties are advised that failure to file 16 objections within the specified time may waive the right to appeal the District Court’s order. 17 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 Dated: 3b142a July 14, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3
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