(PC) Gregory E. Shehee (Civil Detainee) v. Redding, et al, No. 1:2014cv00706 - Document 131 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending the Instant Action be Dismissed for Failure to Comply with a Court Order and Failure to Prosecute this Action signed by Magistrate Judge Stanley A. Boone on 11/27/2018. Referred to Judge Dale A. Drozd. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY ELL SHEHEE, 12 Plaintiff, 13 v. 14 REDDING, et al., 15 Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-00706-DAD-SAB (PC) FINDINGS AND RECOMMENDATION RECOMMENDING THE INSTANT ACTION BE DISMISSED FOR FAILURE TO COMPLY WITH A COURT AND FAILURE TO PROSECUTE THIS ACTION [Doc. No. 128] At the time this action was filed, Plaintiff Gregory Ell Shehee was a civil detainee proceeding 18 pro se in a civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 I. 21 RELEVANT BACKGROUND 22 On September 27, 2018, Defendants filed a motion for an order declaring Plaintiff a vexatious 23 litigant. (Doc. No. 126.) Plaintiff did not file an opposition or statement of non-opposition. Local 24 Rule 230. Accordingly, on October 31, 2018, the Court directed Plaintiff to file an opposition or 25 statement of non-opposition within twenty-one (21) days. (Doc. No. 128.) The Court’s order 26 specifically advised Plaintiff that his failure to file an opposition or statement of non-opposition will 27 result in a recommendation to dismiss the action for failure to prosecute and failure to obey a court 28 order. (Id.) 1 On November 7, 2018, the Court’s October 31, 2018, was returned by the United States Postal 1 2 Office with a notation that is could not be delivered as addressed. On November 8, 2018, Plaintiff filed a notice of change of address. (ECF No. 129.)_ On this 3 4 same date, the Court re-served the October 31, 2018, order at Plaintiff’s new address of record. On 5 November 9, 2018, Plaintiff filed another change of address, but the address remained the same and 6 re-service was not necessary. (ECF No. 130.) The twenty-one deadline passed without Plaintiff either filing and opposition or statement of 7 8 non-opposition. 9 II. 10 LEGAL STANDARD Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with any 11 12 order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the 13 inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n 14 the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.” 15 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 16 prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or failure to 17 comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 18 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal 19 for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 20 833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to comply with court order). In determining whether to dismiss an action for lack of prosecution, the Court must consider 21 22 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to 23 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 24 of cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 25 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 26 /// 27 /// 28 /// 2 1 III. 2 ANALYSIS In the instant case, the public’s interest in expeditiously resolving this litigation and the Court’s 3 4 interest in managing its docket weigh in favor of dismissal. The third factor, risk of prejudice to 5 Defendants, also weights in favor of dismissal, since a presumption of injury arises from the 6 occurrence of unreasonable delay in prosecuting this action. Anderson v. Air West, 542 F.2d 522, 524 7 (9th Cir. 1976). The fourth factor—public policy favoring disposition of cases on their merits—is 8 greatly outweighed by the factors in favor of dismissal discussed herein. Finally, as for the availability 9 of lesser sanctions, at this stage in the proceedings there is little available which would constitute a 10 satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not paid the filing 11 fee for this action is likely unable to pay, making monetary sanctions of little use. 12 IV. 13 RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that the action be dismissed based 14 15 on Plaintiff’s failure to obey a court order and failure to prosecute. This Findings and Recommendation will be submitted to the United States District Judge 16 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 18 after being served with this Findings and Recommendation, the parties may file written objections 19 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 20 Recommendation.” The parties are advised that failure to file objections within the specified time may 21 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 22 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. 25 Dated: 26 November 27, 2018 UNITED STATES MAGISTRATE JUDGE 27 28 3

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