Jennings v. County of Fresno et al, No. 1:2010cv00928 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action, signed by Magistrate Judge Dennis L. Beck on 1/20/11: Recommending that this action be DISMISSED for failure to follow a court order and failure to prosecute this action re 1 Complaint filed by Brian Jennings; Objections to F&R due by 2/25/2011.(Hellings, J)
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Jennings v. County of Fresno et al Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 BRIAN JENNINGS, ) 1:10cv0928 AWI DLB ) ) ) ) FINDINGS AND RECOMMENDATION ) REGARDING DISMISSAL OF ACTION ) ) ) ) ) ) ) 9 10 Plaintiff, 11 v. 12 COUNTY OF FRESNO, et al., 13 14 Defendants. 15 ) 16 Plaintiff Brian Jennings (“Plaintiff”), appearing pro se and proceeding in forma pauperis, 17 filed this civil rights action on May 24, 2010. He named the County of Fresno, Fresno County 18 Sheriff Margaret Mims, Officer Livingston and Officer Harrow as Defendants. 19 On December 8, 2010, the Court issued an order requiring Plaintiff to either file an 20 amended complaint or notify the Court of his willingness to proceed only on those claims found 21 to be cognizable. The Court ordered Plaintiff to either file an amended complaint or notify the 22 court in writing that he did not wish to file an amended complaint and was instead willing to 23 proceed only on the cognizable claims. Plaintiff was granted thirty (30) days from service to 24 respond to the Court’s order. More than thirty (30) days have passed since Plaintiff was served 25 with the Court’s order. To date, Plaintiff has failed to file either an amended complaint or a 26 written notification that he is willing to proceed only on the cognizable claims. 27 28 1 Dockets.Justia.com 1 2 For the reasons discussed below, the Court recommends that this action be dismissed for failure to follow a Court order and failure to prosecute this matter. 3 4 DISCUSSION Local Rule 110 provides that “failure of counsel or of a party to comply with these Local 5 Rules or with any order of the Court may be grounds for the imposition by the Court of any and 6 all sanctions . . . within the inherent power of the Court.” District courts have the inherent power 7 to control their dockets and “[i]n the exercise of that power they may impose sanctions including, 8 where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 9 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 10 action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 11 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 12 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 13 order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 14 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 15 apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) 16 (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 17 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 18 In determining whether to dismiss an action for lack of prosecution, failure to obey a 19 court order, or failure to comply with local rules, the court must consider several factors: (1) the 20 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 21 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 22 their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 23 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 24 46 F.3d at 53. 25 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 26 litigation and the Court’s interest in managing the docket weigh in favor of dismissal. This case 27 has been pending since May 24, 2010. Plaintiff has been given an opportunity either to correct 28 the deficiencies in his complaint or to proceed on the claims that the Court found cognizable. 2 1 However, Plaintiff has made no effort to respond to the Court. The third factor, risk of prejudice 2 to defendants, also weighs in favor of dismissal, since a presumption of injury arises from the 3 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 4 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their 5 merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a 6 court’s warning to a party that his failure to obey the court’s order will result in dismissal 7 satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 8 at 132-33; Henderson, 779 F.2d at 1424. The Court’s December 8, 2010, order requiring 9 Plaintiff to file a response or an amended complaint expressly stated: “If Plaintiff fails to comply 10 with this order, this action will be dismissed for failure to state a claim upon which relief may be 11 granted.” Thus, Plaintiff had adequate warning that dismissal would result from his 12 noncompliance with the Court’s order. 13 14 15 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for failure to follow a court order and failure to prosecute this action. 16 These findings and recommendations will be submitted to the Honorable Anthony W. 17 Ishii, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after 18 being served with these Findings and Recommendations, Plaintiff may file written objections 19 with the Court. The document should be captioned “Objections to Magistrate Judge's Findings 20 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 21 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 22 (9th Cir. 1991). 23 24 25 IT IS SO ORDERED. Dated: 3b142a January 20, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 26 27 28 3
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