Flores v. Daschofsky, No. 1:2009cv02108 - Document 4 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Regarding Petitioner's Failure to Follow a Court Order signed by Magistrate Judge Gary S. Austin on 2/1/2010. Matter referred to Judge Oliver W. Wanger; Objections to F&R due within thirty (30) days. (Esteves, C)
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Flores v. Daschofsky Doc. 4 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 JAIME PERALEZ FLORES, 13 14 15 16 17 ) ) Petitioner, ) ) v. ) ) ) ROBERT DASCHOFSKY, ) ) Respondent. ) ____________________________________) 1:09-CV-2108 OWW-GSA FINDINGS AND RECOMMENDATION REGARDING PETITIONER’S FAILURE TO FOLLOW A COURT ORDER [Doc. #2] 18 19 Plaintiff, Jaime Peralez Flores (“Plaintiff”), is proceeding pro se and filed a complaint 20 alleging civil rights violations pursuant to 42 U.S.C. § 1983. On December 2, 2009, Plaintiff filed a 21 motion to proceed in forma pauperis, however, he did not complete the application form. On 22 December 10, 2009, this Court issued an order that within forty-five (45) days, Plaintiff shall file and 23 submit a completed application to proceed in forma pauperis, or in the alternative, pay the $350.00 24 filing fee. The deadline for filing the completed in forma pauperis application was January 25, 2010. 25 To date, Plaintiff has not complied with the Court’s order. 26 DISCUSSION 27 28 Local Rule 11-110 provides that “a failure of counsel or of a party to comply with these Local Rules or with any order of the Court may be grounds for the imposition by the Court of any and all U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 sanctions . . . within the inherent power of the Court.@ District courts have the inherent power to 2 control their dockets and Ain the exercise of that power, they may impose sanctions including, where 3 appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 4 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 5 action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 6 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 7 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 8 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 9 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of 10 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 11 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 12 lack of prosecution and failure to comply with local rules). In determining whether to dismiss an 13 action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the 14 court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; 15 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 16 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 17 alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; 18 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 19 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 20 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because there is 21 no indication that the Plaintiff intends to prosecute this action. The third factor, risk of prejudice to 22 defendants, also weighs in favor of dismissal because a presumption of injury arises from any 23 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 24 1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly 25 outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that his failure 26 to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” 27 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The 28 Court’s order requiring Plaintiff to file a completed in forma pauperis application, or alternatively, to U .S. D istrict C ourt E. D . C alifornia cd 2 1 pay the filing fee, was clear that dismissal would result from non-compliance with the Court's order. 2 RECOMMENDATION 3 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 4 Plaintiff’s failure to comply with a court order. 5 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 6 States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B). Within 7 thirty (30) days after being served with a copy, Plaintiff may file written objections with the Court. 8 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 10 § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may waive 11 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 IT IS SO ORDERED. 14 Dated: cf0di0 February 1, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 3
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