(PC)Wilkerson v. Harrington et al, No. 1:2010cv00724 - Document 8 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED Based on Plaintiff's Failure to Obey the Court's Order of December 9, 2010, (Doc. 7 ) and for Failure to State a Claim re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Dennis L. Beck on 3/22/2011. Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)
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(PC)Wilkerson v. Harrington et al Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAUNDRO WILKERSON, 12 13 14 Plaintiff, v. 1:10-CV-00724-AWI-DLB (PC) FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO STATE A CLAIM (DOC. 7) K. HARRINGTON, et al. OBJECTIONS, IF ANY, DUE IN TWENTYONE DAYS 15 Defendants. 16 ______________________________/ 17 18 19 Plaintiff Saundro Wilkerson (“Plaintiff”) is a state prisoner proceeding pro se in this civil 20 rights action. Plaintiff filed his complaint on April 26, 2010. On December 9, 2010, the court 21 issued an order dismissing the complaint, with leave to file an amended complaint, within thirty 22 (30) days. Doc. 7. The thirty (30)-day period has now expired, and plaintiff has not filed an 23 amended complaint or otherwise responded to the court's order. 24 Local Rule 110 provides that “failure of counsel or of a party to comply with these Local 25 Rules or with any order of the Court may be grounds for the imposition by the Court of any and 26 all sanctions . . . within the inherent power of the Court.” District courts have the inherent power 27 to control their dockets and “in the exercise of that power, they may impose sanctions including, 28 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th -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 4 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 5 order 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; 16 Ghazali, 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. Air 21 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition 22 of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed 23 herein. Finally, a court’s warning to a party that his failure to obey the court’s order will result in 24 dismissal satisfies the “consideration of alternatives” requirement. Ferdik , 963 F.2d at 1262; 25 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The court’s order expressly stated: 26 “If Plaintiff fails to comply with this order, the Court will recommend dismissal of this action for 27 failure to obey a court order and failure to state a claim.” Thus, plaintiff had adequate warning 28 that dismissal would result from his noncompliance with the court’s order. -2- 1 2 3 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on Plaintiff's failure to obey the Court’s order of December 9, 2010, and for failure to state a claim. These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 5 days after being served with these findings and recommendations, Plaintiff may file written 6 objections with the court. Such a document should be captioned “Objections to Magistrate 7 Judge's Findings and Recommendations.” The Plaintiff is advised that failure to file objections 8 within the specified time may waive the right to appeal the District Court's order. Martinez v. 9 Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 IT IS SO ORDERED. 11 Dated: 77e0d6 March 22, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-
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