(PC) Crew v. Department of Corrections and Rehabilitation, No. 1:2016cv00590 - Document 56 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action, With Prejudice, for Failure to Obey a Court Order and Failure to Prosecute 52 , 55 , signed by Magistrate Judge Barbara A. McAuliffe on 7/9/2018: 14-Day Deadline. (Hellings, J)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID CREW, 11 12 13 14 Case No. 1:16-cv-00590-LJO-BAM (PC) Plaintiff, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (ECF Nos. 52, 55) Defendants. 15 FOURTEEN (14) DAY DEADLINE 16 17 I. 18 Plaintiff David Crew (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 20 Background pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 29, 2018, the Court granted Plaintiff’s motions for leave to amend, and Plaintiff 21 was directed to file a third amended complaint within thirty (30) days. (ECF No. 52.) Following 22 Plaintiff’s failure to timely file an amended complaint, the Court issued an order for Plaintiff to 23 file a third amended complaint or to show cause, within twenty-one (21) days, why this action 24 should not be dismissed, with prejudice, for failure to obey a court order and failure to prosecute. 25 (ECF No. 55.) Plaintiff was expressly warned that his failure to respond to the Court’s order 26 would result in the dismissal of this action, with prejudice, for failure to obey a court order and 27 failure to prosecute. (Id. at 2.) The deadline for Plaintiff to file his amended complaint has 28 passed, and he has not complied with the Court’s orders. 1 1 II. Discussion 2 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 3 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 4 within the inherent power of the Court.” District courts have the inherent power to control their 5 dockets and “[i]n the exercise of that power they may impose sanctions including, where 6 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 7 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 8 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 9 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 10 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 11 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 12 (dismissal for failure to comply with court order). 13 In determining whether to dismiss an action, the Court must consider several factors: 14 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 15 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 16 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 17 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 18 Here, the action has been pending since April 2016, and Plaintiff’s third amended 19 complaint is overdue. The Court cannot hold this case in abeyance awaiting such compliance by 20 Plaintiff. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 21 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 22 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 23 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs 24 against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 25 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 26 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 27 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Prods. Liab. 28 Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 2 1 Finally, the court’s warning to a party that failure to obey the court’s order will result in 2 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 3 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s May 30, 2018 order to show 4 cause expressly warned Plaintiff that failure to comply with that order would result in a dismissal 5 of this action, with prejudice, for failure to obey a court order and failure to prosecute. (ECF No. 6 55, p. 2.) Thus, Plaintiff had adequate warning that dismissal could result from his 7 noncompliance. 8 9 Additionally, at this stage in the proceedings there is little available to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 10 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 11 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 12 likely to have no effect given that Plaintiff has ceased litigating her case. 13 III. 14 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 15 Conclusion and Recommendation prejudice, for failure to obey a court order and failure to prosecute. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 18 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 19 file written objections with the Court. The document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 objections within the specified time may result in the waiver of the “right to challenge the 22 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 23 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 24 25 Dated: /s/ Barbara July 9, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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