-SMS Josephine Flores v. City of Tulare et al, No. 1:2010cv00394 - Document 18 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Re: Dismissal of 1 Action for Failure to Comply with a Court Order and Failure to Prosecute signed by Magistrate Judge Sandra M. Snyder on 4/21/2011. Referred to Judge Anthony W. Ishii. (Sant Agata, S)

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-SMS Josephine Flores v. City of Tulare et al Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSEPHINE FLORES, 11 1:10-cv-00394-AWI-SMS FINDINGS AND RECOMMENDATION RE: DISMISSAL OF ACTION FOR FAILURE TO COMPLY WITH A COURT ORDER AND FAILURE TO PROSECUTE (Doc. 17) Plaintiff, 12 vs. 13 CITY OF TULARE, et al., 14 Defendants. / 15 16 17 18 Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On March 14, 2011, plaintiff’s counsel’s motion to withdraw 19 as counsel of record for plaintiff was granted. 20 granted to and through April 15, 2011, to advise the Court, in 21 writing, of either her new counsel of record -OR- of her desire 22 to proceed with this case In Propria Persona. 23 has failed to comply with or otherwise respond to the Court’s 24 order. 25 Plaintiff was To date, plaintiff Local Rule 110 provides that “failure of counsel or of a 26 party to comply with these Local Rules or with any order of the 27 Court may be grounds for the imposition by the Court of any and 28 all sanctions . . . within the inherent power of the Court.” 1 Dockets.Justia.com 1 District courts have the inherent power to control their dockets 2 and “in the exercise of that power, they may impose sanctions 3 including, where appropriate . . . dismissal of a case.” 4 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). 5 court may dismiss an action, with prejudice, based on a party’s 6 failure to prosecute an action, failure to obey a court order, or 7 failure to comply with local rules. 8 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance 9 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th A See, e.g. Ghazali v. Moran, 10 Cir. 1992) (dismissal for failure to comply with an order 11 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 12 1440-41 (9th Cir. 1988)(dismissal for failure to comply with 13 local rule requiring pro se plaintiffs to keep court apprised of 14 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 15 Cir. 1987)(dismissal for failure to comply with court order); 16 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 17 (dismissal for failure to lack of prosecution and failure to 18 comply with local rules). 19 In determining whether to dismiss an action for lack of 20 prosecution, failure to obey a court order, or failure to comply 21 with local rules, the court must consider several factors: (1) 22 the public’s interest in expeditious resolution of litigation; 23 (2) the court’s need to manage its docket; (3) the risk of 24 prejudice to the defendants; (4) the public policy favoring 25 disposition of cases on their merits; and, (5) the availability 26 of less drastic alternatives. 27 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 28 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. Thompson, 782 F.2d at 831; 2 1 In the instant case, the court finds that the public’s 2 interest in expeditiously resolving this litigation and the 3 court’s interest in managing the docket weigh in favor of 4 dismissal. 5 also weighs in favor of dismissal, since a presumption of injury 6 arises from the occurrence of unreasonable delay in prosecuting 7 an action. 8 1976). 9 of cases on their merits -- is greatly outweighed by the factors The third factor, risk of prejudice to defendants, Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. The fourth factor -- public policy favoring disposition 10 in favor of dismissal discussed herein. 11 warning to a party that failure to obey the court’s order will 12 result in dismissal satisfies the “consideration of alternatives” 13 requirement. 14 at 132-33; Henderson, 779 F.2d at 1424. 15 March 14, 2011, expressly stated: “Pro Se Plaintiff is herein 16 advised that failure to comply with the Local Rules, Federal 17 Rules, or a Court Order, including this Order, will be grounds 18 for dismissal of this action or other appropriate sanctions. See 19 Local Rule 110; Fed.R.Civ.P. 41(b).” 20 adequate warning that dismissal could result from non-compliance 21 with the court’s order. 22 Finally, a court’s Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 The court’s order of Thus, plaintiff had Accordingly, the court HEREBY RECOMMENDS that this action be 23 dismissed in its entirety based on plaintiff's failure to obey 24 the court’s order of March 14, 2011, and failure to prosecute. 25 These Findings and Recommendation are submitted to the 26 United States District Judge assigned to the case, pursuant to 27 the provisions of Title 28 U.S.C. § 636(b)(l). 28 days after being served with these Findings and Recommendation, 3 Within ten (10) 1 plaintiff may file written objections with the court. 2 document should be captioned "Objections to Magistrate Judge's 3 Findings and Recommendation." 4 to file objections within the specified time may waive the right 5 to appeal the District Court's order. 6 1153 (9th Cir. 1991). Such a Plaintiff is advised that failure Martinez v. Ylst, 951 F.2d 7 8 9 10 IT IS SO ORDERED. Dated: icido3 April 21, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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