(PC) Hernandez v. Lopez et al, No. 1:2015cv00180 - Document 16 (E.D. Cal. 2015)

Court Description: FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE RE 15 signed by Magistrate Judge Barbara A. McAuliffe on 8/31/2015. Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/17/2015. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HENRY HERNANDEZ, 12 Plaintiff, 13 v. 14 N. LOPEZ, et al., 15 16 17 18 19 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-00180-AWI-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE (ECF No. 15) FOURTEEN-DAY DEADLINE Plaintiff Henry Hernandez (“Plaintiff”), a former state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, initiated this action on January 8, 21 2015. On July 20, 2015, the Court dismissed Plaintiff’s second amended complaint with leave to 22 amend within thirty days. (ECF No. 15.) Plaintiff was warned that if he failed to file an amended 23 complaint in compliance with the Court’s order, this action would be dismissed for failure to obey a 24 court order and failure to state a claim. (Id. at 5.) The deadline for Plaintiff to file his amended 25 complaint has passed, and he has not complied with or otherwise responded to the Court’s order. 26 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with any 27 order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the 28 inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n 1 1 the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.” 2 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 3 prejudice, based on a party’s failure to prosecute an action, failure to obey a court order, or failure to 4 comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 5 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal 6 for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 7 833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to comply with court order). 8 9 In determining whether to dismiss an action, the Court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) 10 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 11 merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 12 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 13 The Court finds that the public’s interest in expeditiously resolving this litigation and the 14 Court’s interest in managing the docket weigh in favor of dismissal. This action has been pending 15 since January 2015. Plaintiff has made no attempt to contact the Court or otherwise comply with the 16 Court’s July 20, 2015 order. The Court cannot hold this case in abeyance awaiting such compliance 17 by Plaintiff. The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 18 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 19 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring 20 disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal 21 discussed herein. Finally, the court’s warning to a party that failure to obey the court’s order will 22 result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 23 1262; Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s July 20, 2015 order 24 granting Plaintiff leave to amend his complaint expressly stated, “If Plaintiff fails to file a first 25 amended complaint in compliance with this order, this action will be dismissed for failure to obey a 26 court order and for failure to state a claim.” (ECF No. 15, p. 5.) Thus, Plaintiff had adequate warning 27 that dismissal could result from his noncompliance with the Court’s order. 28 2 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed based on 1 2 Plaintiff’s failure to comply with the Court’s July 20, 2015 order, for failure to state a claim, and for 3 failure to prosecute. These findings and recommendations will be submitted to the United States District Judge 4 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 6 days after being served with these findings and recommendations, Plaintiff may file written objections 7 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 8 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 9 result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson 10 v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 11 1991)). 12 13 14 15 IT IS SO ORDERED. Dated: /s/ Barbara August 31, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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