(PC) Jack Calvin Mateer et al v. Audrey King et al, No. 1:2015cv00440 - Document 24 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Action without Prejudice for Failure to Obey a Court Order and Failure to Prosecute, signed by Magistrate Judge Michael J. Seng on 9/1/15. Fourteen Day Objection Deadline. (Gonzalez, R)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JACK CALVIN MATEER, 10 11 12 13 Plaintiffs, v. AUDREY KING, et al., Defendants. 14 CASE NO. 1:15-cv-0440-LJO-MJS (PC) FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (ECF No. 23) FOURTEEN (14) DAY OBJECTION DEADLINE 15 16 Plaintiff is a former civil detainee proceeding pro se and in forma pauperis in this 17 civil rights action brought pursuant to 42 U.S.C. § 1983. On June 29, 2015, the 18 undersigned screened Plaintiff’s first amended complaint and dismissed it with leave to 19 amend. (ECF No. 23.) Plaintiff’s second amended complaint was due on or before July 20 29, 2015. To date, Plaintiff has not filed an amended pleading. Moreover, it appears that 21 Plaintiff is now out of custody and has not updated the Court with his current mailing 22 address. See E.D. Cal. Local Rule 183. 23 Local Rule 110 provides that “failure of counsel or of a party to comply with these 24 Rules or with any order of the Court may be grounds for imposition by the Court of any 25 and all sanctions . . . within the inherent power of the Court.” District courts have the 26 inherent power to control their dockets and “in the exercise of that power, they may 27 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 28 1 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 2 on a party’s failure to prosecute, failure to obey a court order, or failure to comply with 3 local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 4 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 5 1992) (dismissal for failure to comply with an order requiring amendment of a complaint); 6 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 7 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 8 U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply 9 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424-25 (9th Cir. 1986) 10 (dismissal for lack of prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for lack of prosecution, failure to obey 12 a court order, or failure to comply with local rules, the Court must consider several 13 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 14 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 15 favoring disposition of cases on their merits, and (5) the availability of less drastic 16 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423. 17 In the instant case, the public’s interest in expeditiously resolving this litigation 18 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 19 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 20 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 21 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – 22 public policy favoring disposition of cases on their merits – is greatly outweighed by the 23 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 24 sanctions, at this stage in the proceedings there is little available which would constitute 25 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 26 paid the filing fees in this action and likely is unable to pay, making monetary sanctions 27 of little use. 28 Based on the foregoing, it is HEREBY RECOMMENDED that the action be 2 1 dismissed, without prejudice, for failure to obey a court order and failure to prosecute. 2 These Findings and Recommendations are submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 4 fourteen (14) days after being served with these Findings and Recommendations, any 5 party may file written objections with the Court and serve a copy on all parties. Such a 6 document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendations.” Any reply to the objections shall be served and filed within fourteen 8 (14) days after service of the objections. The parties are advised that failure to file 9 objections within the specified time may result in the waiver of rights on appeal. 10 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 11 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 14 IT IS SO ORDERED. Dated: September 1, 2015 /s/ 15 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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