Phelps v. Jackson, No. 1:2014cv00700 - Document 7 (E.D. Cal. 2014)

Court Description: Findings and Recommendations recommending dismissing action with prejudice for failure to state a claim, signed by Magistrate Judge Stanley A. Boone on 06/25/2014. Matter referred to Judge O'Neill. Objections to F&R due by 7/14/2014. (Figueroa, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL PHELPS, 12 13 14 15 Case No. 1:14-cv-000700-LJO-SAB Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM v. CRYSTAL JACKSON, (ECF No. 6) Defendant. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 17 18 Plaintiff Daniel Phelps, proceeding pro se and in forma pauperis, filed a complaint in this 19 civil rights action pursuant to 42 U.S.C. § 1983 on May 9, 2014. The complaint was screened 20 and on May 20, 2014, an order issued dismissing the complaint for failure to state a claim. 21 Plaintiff was provided with the relevant legal standards and was ordered to file an amended 22 complaint within thirty days. More than thirty days have passed and Plaintiff has failed to file an 23 amended complaint or otherwise respond to the Court’s May 20, 2014 order. 24 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 25 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 26 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 27 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 28 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 1 1 2000). 2 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 3 action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 4 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 5 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 6 order to file an amended complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 7 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised 8 of address); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 9 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 10 1986) (dismissal for lack of prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for failure to comply with a pretrial order, 12 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 13 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 14 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 15 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 16 (9th Cir. 2006) (internal quotations and citations omitted). These factors guide a court in 17 deciding what to do, and are not conditions that must be met in order for a court to take action. 18 Id. (citation omitted). 19 In this instance the public’s interest in expeditious resolution of the litigation and the 20 Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff was ordered to file 21 an amended complaint that complied with the Federal Rules of Civil Procedure within thirty days 22 of May 20, 2014. Plaintiff has been provided with the legal standards that would apply to his 23 claims and the opportunity to file an amended complaint. Plaintiff has neither filed an amended 24 complaint nor otherwise responded to the Court’s order. Plaintiff’s failure to comply with the 25 orders of the Court hinders the Court’s ability to move this action towards disposition, and 26 indicates that Plaintiff does not intend to diligently litigate this action. 27 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 28 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 2 1 1452-53 (9th Cir. 1994). This risk of prejudice may be rebutted if Plaintiff offers an excuse for 2 the delay. In re Eisen, 31 F.3d at 1453. The risk of prejudice to the defendants also weighs in 3 favor of dismissal. 4 The public policy in favor of deciding cases on their merits is greatly outweighed by the 5 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This 6 action can proceed no further without Plaintiff’s cooperation and compliance with the order at 7 issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. In this 8 instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 9 Finally, a court’s warning to a party that their failure to obey the court’s order will result 10 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 11 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s May 20, 2014, order 12 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 13 amended complaint in compliance with this order, this action will be dismissed, with prejudice, for 14 failure to state a claim.” (ECF No. 6 at 3.) Thus, Plaintiff had adequate warning that dismissal 15 would result from his noncompliance with the Court’s order and his failure to state a claim. 16 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED, with 17 prejudice, for Plaintiff’s failure to state a claim. 18 These findings and recommendations are submitted to the district judge assigned to this 19 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 20 (14) days of service of this recommendation, any party may file written objections to these 21 findings and recommendations with the Court and serve a copy on all parties. Such a document 22 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 23 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time 2 may waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 3 Cir. 1991). 4 5 6 IT IS SO ORDERED. Dated: June 25, 2014 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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