(PC) Vanderwerff v. Allison et al, No. 1:2013cv00521 - Document 29 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED Based on Plaintiff's Failure to Comply With the Court's June 9, 2015 Order re 26 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 7/22/2015. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 CHRISTOPHER EVAN VANDERWERFF, 10 11 12 13 Plaintiff, v. K. ALLISON, et al., Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) 1:13-cv-00521-LJO-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM FOURTEEN-DAY DEADLINE 15 16 Plaintiff Christopher Evan Vanderwerff (“Plaintiff”) is a state prisoner proceeding pro se 17 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated 18 this action on February 13, 2013. 19 On June 9, 2015, the Court dismissed Plaintiff’s first amended complaint for failure to 20 comply with Federal Rule of Civil Procedure 18 and other pleading deficiencies. The Court 21 granted Plaintiff leave to amend with thirty (30) days from the date of service. Plaintiff was 22 warned that if he failed to file an amended complaint in compliance with the order, this action 23 would be dismissed for failure to obey a court order. (ECF No. 28.) The deadline for Plaintiff to 24 file his second amended complaint has passed and Plaintiff has not complied with or otherwise 25 responded to the Court’s order. 26 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 27 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 28 within the inherent power of the Court.” District courts have the inherent power to control their 1 1 dockets and “[i]n the exercise of that power they may impose sanctions including, where 2 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 3 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 4 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 5 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 6 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 7 requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th 8 Cir. 1987) (dismissal for failure to comply with court order). 9 In determining whether to dismiss an action, the Court must consider several factors: (1) 10 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 11 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 12 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 13 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 14 The Court finds that the public’s interest in expeditiously resolving this litigation and the 15 Court’s interest in managing the docket weigh in favor of dismissal. This action has been 16 pending since February 2013. Plaintiff has made no attempt to contact the Court or otherwise 17 comply with the Court’s June 2015 order. The Court cannot hold this case in abeyance awaiting 18 such compliance by Plaintiff. The third factor, risk of prejudice to defendant, also weighs in 19 favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable 20 delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The 21 fourth factor -- public policy favoring disposition of cases on their merits -- is greatly 22 outweighed by the factors in favor of dismissal discussed herein. Finally, the court’s warning to 23 a party that failure to obey the court’s order will result in dismissal satisfies the “considerations 24 of the alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-133; Henderson, 25 779 F.2d at 1424. The Court’s order issued on June 9, 2015, expressly stated “If Plaintiff fails to 26 file a second [amended] complaint in compliance with this order, this action will be dismissed 27 for failure to obey a court order.” (ECF No. 28, p. 15.) Thus, Plaintiff had adequate warning 28 that dismissal could result from his noncompliance with the Court’s order. 2 1 2 3 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed based on Plaintiff’s failure to comply with the Court’s June 9, 2015 order. These findings and recommendations will be submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 5 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 6 file written objections with the Court. The document should be captioned “Objections to 7 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 8 objections within the specified time may result in the waiver of the “right to challenge the 9 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 10 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 IT IS SO ORDERED. Dated: /s/ Barbara July 22, 2015 14 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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