(PC) Lee v. Fresno County Jail et al, No. 1:2008cv01883 - Document 4 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS Recommending to Dismiss Case for Failure to Obey a Court Order 1 , signed by Magistrate Judge William M. Wunderlich on 2/9/09: Objections to F&R due by 3/5/2009. (Hellings, J)
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(PC) Lee v. Fresno County Jail et al Doc. 4 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KENNETH LEE, 11 12 13 Plaintiff, vs. FRESNO COUNTY JAIL, et al., 1:08-cv-01883-WMW (PC) FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER OBJECTIONS, IF ANY, DUE IN 20 DAYS 14 15 Defendants. __________________________________/ 16 Plaintiff is proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. On 17 December 9, 2009, the court issued an order requiring plaintiff to submit an application to proceed in 18 forma pauperis or pay the filing fee within thirty days of the date of service of the order. More than 19 thirty days have passed and plaintiff has not complied with or otherwise responded to the court’s order.1 20 Local Rule 11-110 provides that “failure of counsel or of a party to comply with these 21 Local Rules or with any order of the Court may be grounds for the imposition by the Court of any and 22 all sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 23 control their dockets and “in the exercise of that power, they may impose sanctions including, where 24 appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 25 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 26 27 1 28 The United States Postal Service returned the order on December 17, 2009 as undeliverable. A notation on the envelope indicates that plaintiff was out of custody. However, plaintiff has not notified the court of any change in his address. Absent such notice, service at a party’s prior address is fully effective. Local Rule 83-182(f). -1Dockets.Justia.com 1 action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 2 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 3 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 4 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 5 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 6 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 7 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 8 failure to lack of prosecution and failure to comply with local rules). In determining whether to 9 dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with 10 local rules, the court must consider several factors: (1) the public’s interest in expeditious resolution 11 of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 12 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 13 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 14 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 15 In the instant case, the court finds that the public’s interest in expeditiously resolving 16 this litigation and the court’s interest in managing the docket weigh in favor of dismissal, as this case 17 has been pending since December 9, 2009. The third factor, risk of prejudice to defendants, also 18 weighs in favor of dismissal, since a presumption of injury arises from the occurrence of 19 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 20 1976). The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly 21 outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s warning to a 22 party that his failure to obey the court’s order will result in dismissal satisfies the “consideration of 23 alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 24 779 F.2d at 1424. The court’s order requiring plaintiff to submit an application to proceed in forma 25 pauperis expressly stated: “Failure to comply with this order will result in a recommendation that 26 this action be dismissed." Thus, plaintiff had adequate warning that dismissal would result from his 27 noncompliance with the court’s order. 28 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed -2- 1 based on plaintiff's failure to obey the court’s order of December 9, 2009. 2 These Findings and Recommendations are submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty 4 (20) days after being served with these Findings and Recommendations, plaintiff may file written 5 objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s 6 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 7 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 8 1153 (9th Cir. 1991). 9 IT IS SO ORDERED. 10 Dated: j14hj0 February 9, 2009 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-
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