Young, et al. v. Kietz, et al., No. 1:2014cv01471 - Document 11 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, With Prejudice, for Plaintiff's Failure to Prosecute and Failure to State a Claim re 1 Complaint signed by Magistrate Judge Stanley A. Boone on 12/12/2014. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAVELL DARRYL YOUNG, Plaintiff, 12 13 14 15 Case No. 1:14-cv-01471-LJO-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO STATE A CLAIM v. MICHAEL R. KIETZ, OBJECTIONS DUE WITHIN THIRTY DAYS Defendant. 16 17 I. 18 PROCEDURAL HISTORY 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action. 20 Plaintiff filed a complaint on September 22, 2014 which was screened by the Court. On 21 November 11, 2014, an order issued dismissing the complaint for failure to state a claim and 22 granting Plaintiff thirty days in which to file an amended complaint. More than thirty days have 23 passed and Plaintiff has not complied with or otherwise responded to the Court’s order. 24 II. 25 DISCUSSION 26 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 27 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 28 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 1 1 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 2 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 3 2000). 4 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 5 action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 6 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 7 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 8 order to file an amended complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 9 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised 10 of address); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 11 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 12 1986) (dismissal for lack of prosecution and failure to comply with local rules). 13 In determining whether to dismiss an action for failure to comply with a pretrial order, 14 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 15 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 16 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 17 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 18 (9th Cir. 2006) (internal quotations and citations omitted). These factors guide a court in 19 deciding what to do, and are not conditions that must be met in order for a court to take action. 20 Id. (citation omitted). 21 In this instance the public’s interest in expeditious resolution of the litigation and the 22 Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff was ordered to file 23 an amended complaint to cure the deficiencies in this complaint within thirty days of November 24 7, 2014. Plaintiff has been provided with the legal standards that would apply to his claims and 25 the opportunity to file an amended complaint. Plaintiff has neither filed an amended complaint 26 nor otherwise responded to the Court’s order. Plaintiff’s failure to comply with the orders of the 27 Court hinders the Court’s ability to move this action towards disposition, and indicates that 28 Plaintiff does not intend to diligently litigate this action. 2 1 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 2 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 3 1452-53 (9th Cir. 1994). This risk of prejudice may be rebutted if Plaintiff offers an excuse for 4 the delay. In re Eisen, 31 F.3d at 1453. The risk of prejudice to the defendants also weighs in 5 favor of dismissal. 6 The public policy in favor of deciding cases on their merits is greatly outweighed by the 7 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This 8 action can proceed no further without Plaintiff’s cooperation and compliance with the order at 9 issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. In this 10 instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 11 Finally, a court’s warning to a party that their failure to obey the court’s order will result 12 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 13 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s November 7, 2014 order 14 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 15 amended complaint in compliance with this order, this action will be dismissed, with prejudice, for 16 failure to state a claim.” (ECF No. 10 at 9:20-21.) Thus, Plaintiff had adequate warning that 17 dismissal would result from his noncompliance with the Court’s order and his failure to state a 18 claim. 19 III. 20 CONCLUSION AND RECOMMENDATION 21 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED, with 22 prejudice, for Plaintiff’s failure to prosecute and failure to state a claim. 23 These findings and recommendations are submitted to the district judge assigned to this 24 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 25 days of service of this recommendation, any party may file written objections to these findings 26 and recommendations with the Court and serve a copy on all parties. Such a document should be 27 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district 28 judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 3 1 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 2 waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 3 1991). 4 5 IT IS SO ORDERED. 6 Dated: December 12, 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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