Gonzalez v. Shirey, No. 1:2014cv01768 - Document 17 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of this Action, signed by Magistrate Judge Barbara A. McAuliffe on 10/2/15. Referred to Judge O'Neill. Fifteen Day Deadline. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON ALBERT GONZALEZ, Plaintiff, 12 13 v. 14 KEVIN SHIREY, No. 1: 14-cv-1768-LJO-BAM FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF THIS ACTION FIFTEEN DAY DEADLINE Defendants. 15 16 Plaintiff Jason Gonzalez (“Plaintiff”) a state prisoner proceeding pro se in this civil action 17 filed the instant complaint along with a filing fee. (Doc. 1). On June 18, 2015, the Court issued 18 an order dismissing Plaintiff’s complaint with leave to file a first amended complaint. (Doc. 16). 19 Plaintiff was ordered to serve the amended complaint within thirty (30) days of the service of the 20 21 22 23 24 25 order. Well over thirty days have passed and Plaintiff has failed to comply with this Court’s order. DISCUSSION Local Rule 110 provides that “a failure of counsel or of a party to comply with these Local Rules or with any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the Court. District courts have the inherent power 26 to control their dockets and “in the exercise of that power, they may impose sanctions including, 27 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th 28 1 1 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 2 an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 3 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 4 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 5 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 6 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized 7 of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for 8 failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 9 (dismissal for lack of prosecution and failure to comply with local rules). In determining whether 10 to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply 11 with local rules, the court must consider several factors: (1) the public’s interest in expeditious 12 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 13 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 14 availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; 15 16 17 18 19 20 21 22 23 24 25 Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. In the instant case, the Court finds that the public’s interest in expeditiously resolving this litigation and the Court’s interest in managing the docket weigh in favor of dismissal because there is no indication that Plaintiffs intend to prosecute this action. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to file an amended complaint was clear that dismissal would result from non-compliance with the Court’s order. (Doc. 16, pg. 5). 26 27 28 2 1 RECOMMENDATION 2 Based on the above, IT IS HEREBY RECOMMENDED that this action be 3 DISMISSED for Plaintiff’s failure to comply with a court order and that the Clerk of the Court 4 be directed to close this action. 5 These findings and recommendations are submitted to the United States District Judge 6 pursuant to 28 U.S.C. § 636(b)(1)(B). Within fifteen (15) days after the date of this Finding and 7 Recommendation, the parties may file written objections with the Court. The document should 8 be captioned “Objections to Magistrate Judge’s Finding and Recommendation.” The parties are 9 advised that failure to file objections within the specified time may waive the right to appeal the 10 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 13 IT IS SO ORDERED. Dated: /s/ Barbara October 2, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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