(PC) Smith v. Khandorova, et al., No. 1:2015cv00073 - Document 18 (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 May 18, 2015 Order, for Failure to State a Claim and for Failure to Prosecute re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 12/15/2015. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

Download PDF

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 SEMAJ DEWAYNE SMITH, 12 Plaintiff, 13 v. 14 15 DR. KHANDOROVA, et al., Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-00073-AWI-BAM (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO PROSECUTE AND FAILURE TO OBEY A COURT ORDER (ECF No. 12) FOURTEEN-DAY DEADLINE 19 Findings and Recommendations 20 Plaintiff Semaj Dewayne Smith (“Plaintiff”), a prisoner proceeding pro se in this civil 21 22 rights action pursuant to 42 U.S.C. § 1983, initiated this action on January 16, 2015. On July 28, 23 2015, the Court dismissed Plaintiff’s complaint with leave to amend within thirty days. (ECF No. 24 12.) Thereafter, Plaintiff was granted two extension of time to amend his complaint, with the 25 most recent amended complaint due by November 10, 2015. (ECF No. 16.) The deadline for 26 Plaintiff to file his amended complaint has passed, and he has not complied with the Court’s 27 order. 28 1 1 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 2 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 3 within the inherent power of the Court.” District courts have the inherent power to control their 4 dockets and “[i]n the exercise of that power they may impose sanctions including, where 5 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 6 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 7 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 8 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 9 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 10 amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th Cir. 1987) 11 (dismissal for failure to comply with court order). 12 In determining whether to dismiss an action, the Court must consider several factors: (1) 13 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 14 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 15 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 16 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 17 The Court finds that the public’s interest in expeditiously resolving this litigation and the 18 Court’s interest in managing the docket weigh in favor of dismissal. This action has been 19 pending since July 2014. Plaintiff has previously been granted three extensions of time to file his 20 amended complaint, but despite the Court’s leniency, he has not yet complied with the Court’s 21 May 18, 2015 order. The Court cannot hold this case in abeyance awaiting such compliance by 22 Plaintiff. The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since 23 a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 24 action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public 25 policy favoring disposition of cases on their merits—is greatly outweighed by the factors in favor 26 of dismissal discussed herein. Finally, the court’s warning to a party that failure to obey the 27 court’s order will result in dismissal satisfies the “considerations of the alternatives” requirement. 28 Ferdik, 963 F.2d at 1262; Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s 2 1 May 18, 2015 order granting Plaintiff leave to amend his complaint expressly stated, “If Plaintiff 2 fails to file a second amended complaint in compliance with this order, this action will be 3 dismissed for failure to obey a court order.” (ECF No. 24, p. 11.) Thus, Plaintiff had adequate 4 warning that dismissal could result from his noncompliance with the Court’s order. 5 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed based on 6 Plaintiff’s failure to comply with the Court’s May 18, 2015 order, for failure to state a claim, and 7 for failure to prosecute. 8 These findings and recommendations will be submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 10 (14) days after being served with these findings and recommendations, Plaintiff may file written 11 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 13 specified time may result in the waiver of the “right to challenge the magistrate’s factual 14 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 15 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 18 IT IS SO ORDERED. Dated: /s/ Barbara December 15, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.