-MJS (PC) Ybarra v. Anderson et al, No. 1:2009cv01098 - Document 31 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS For Dismissal of Plaintiff's Complaint 1 , signed by Magistrate Judge Michael J. Seng on 12/1/2011, referred to Judge Ishii. Objections Due Within Fourteen (14) Days. (Marrujo, C)
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-MJS (PC) Ybarra v. Anderson et al Doc. 31 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAURA YBARRA 12 1:09-cv-001098-AWI-MJS (PC) Plaintiff, FINDINGS AND RECOMMENDATION FOR DISMISSAL OF PLAINTIFF’S COMPLAINT 13 v. 14 A. ANDERSON, et al. 15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS 16 ________________________________/ 17 Plaintiff Laura Ybarra (“Plaintiff”) is a former state prisoner proceeding pro se and 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 Plaintiff initiated this action on June 22, 2009. (ECF No. 1.) On September 6, 2011, 20 the Court issued an Order denying Defendant Anderson’s motion to dismiss and granting 21 Defendant Anderson’s request to extend the dispositive motion deadline. On September 22 14, 2011, the Court’s Order was returned by the U.S. Postal Service as undeliverable to 23 Plaintiff. More than 63 days have since passed, and Plaintiff has not provided the Court 24 with a new address or otherwise responded. 25 Local Rule 110 provides that “failure of counsel or of a party to comply with these 26 Rules or with any order of the Court may be grounds for imposition by the Court of any and 27 all sanctions . . . within the inherent power of the Court.” District courts have the inherent 28 power to control their dockets and “in the exercise of that power, they may impose -1Dockets.Justia.com 1 sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing 2 Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, 3 based on a party’s failure to prosecute an action, failure to obey a court order, or failure to 4 comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 5 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 6 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 7 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 8 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone 9 v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 10 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal 11 for lack of prosecution and failure to comply with local rules). 12 In determining whether to dismiss an action for lack of prosecution, failure to obey 13 a Court order, or failure to comply with local rules, the Court must consider several factors: 14 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to 15 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 16 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 17 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 18 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 19 In the instant case, the Court finds that the public’s interest in expeditiously resolving 20 this litigation and the Court’s interest in managing the docket weigh in favor of dismissal. 21 The third factor, risk of prejudice to the defendant, also weighs in favor of dismissal, since 22 a presumption of injury arises from the occurrence of unreasonable delay in prosecuting 23 an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -24 public policy favoring disposition of cases on their merits -- is greatly outweighed by the 25 factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that his 26 failure to obey the court’s order will result in dismissal satisfies the “consideration of 27 alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; 28 Henderson, 779 F.2d at 1424 -2- 1 Accordingly, it is RECOMMENDED that in the event that Plaintiff does not within 2 fourteen (14) days of entry of this Order notify the Court in writing of her address to which 3 mail is to be sent, this matter be DISMISSED by the District Judge. 4 These Findings and Recommendation are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 6 Within fourteen days after being served with these findings and recommendations, any 7 party may file written objections with the court and serve a copy on all parties. Such a 8 document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendations.” Any reply to the objections shall be served and filed within ten days 10 after service of the objections. The parties are advised that failure to file objections within 11 the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 12 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. 16 Dated: ci4d6 17 December 1, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 -3-