(PC) Hewitt v. State of California et al, No. 1:2009cv00661 - Document 13 (E.D. Cal. 2009)
Court Description: {VACATED PER ORDER 15 }FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 12/29/2009 recommending that action be DISMISSED based on Plaintiff's faliure to obey a court order. Objections to F&R due by 1/19/2010. (Lundstrom, T)
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(PC) Hewitt v. State of California et al Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD HEWITT, Plaintiff, 12 13 14 v. 1:09-cv-00661-OWW-DLB (PC) FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO STATE A CLAIM STATE OF CALIFORNIA, et al., OBJECTIONS, IF ANY, DUE IN 20 DAYS 15 Defendants. 16 ______________________________/ 17 18 On November 12, 2009, the court issued an order dismissing the complaint with leave to 19 amend, within thirty (30) days. The thirty (30)-day period has now expired, and plaintiff has not 20 filed an amended complaint or otherwise responded to the court's 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 -1Dockets.Justia.com 1 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 2 an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 3 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance with local rule); Ferdik v. 4 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 5 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 6 1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 7 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal 8 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 9 1986)(dismissal for failure to lack of prosecution and failure to comply with local rules). 10 In determining whether to dismiss an action for lack of prosecution, failure to obey a 11 court order, or failure to comply with local rules, the court must consider several factors: (1) the 12 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 13 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 14 their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 15 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 16 46 F.3d at 53. 17 In the instant case, the court finds that the public’s interest in expeditiously resolving this 18 litigation and the court’s interest in managing the docket weigh in favor of dismissal. The third 19 factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of 20 injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. 21 Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring 22 disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal 23 discussed herein. Finally, a court’s warning to a party that his failure to obey the court’s order 24 will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. 25 Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The court’s 26 order expressly stated: “If Plaintiff fails to comply with this order, the Court will dismiss this -2- 1 action, with prejudice, for failure to obey a court order and failure to state a claim.” Thus, 2 plaintiff had adequate warning that dismissal would result from his noncompliance with the 3 court’s order. 4 5 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on plaintiff's failure to obey the court’s order of November 12, 2009 and failure to state a claim. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty 8 days after being served with these findings and recommendations, plaintiff may file written 9 objections with the court. Such a document should be captioned "Objections to Magistrate 10 Judge's Findings and Recommendations." The parties are advised that failure to file objections 11 within the specified time may waive the right to appeal the District Court's order. Martinez v. 12 Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. Dated: 77e0d6 December 29, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 -3-
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