Harris v. Tulare County Social Services et al, No. 1:2018cv00699 - Document 17 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action for Failure to Obey a Court Order re 13 , signed by Magistrate Judge Barbara A. McAuliffe on 3/29/19. Referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 JAMYSON HARRIS, 13 Plaintiff 14 15 16 v. TULARE COUNTY SOCIAL SERVICES, et al., Defendants. 17 Case No. 1:18-cv-00699-LJO-BAM FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (Doc. No. 13) FOURTEEN (14) DAY DEADLINE 18 I. 19 Plaintiff Jamyson Harris (“Plaintiff”) is proceeding pro se and in forma pauperis in this 20 Background civil action. (Doc. No. 1.) 21 On February 12, 2019, the Court addressed Plaintiff’s then-pending motion to amend and 22 directed Plaintiff to file a single amended complaint within thirty (30) days. (Doc. No. 13.) 23 Plaintiff was expressly warned that if he failed to comply with the Court’s order, then his action 24 would be dismissed. (Id. at 13.) More than thirty (30) days have passed and no amended 25 complaint has been filed.1 26 1 27 28 On March 4, 2019, Plaintiff filed a motion to dismiss this action. (Doc. No. 15.) On March 7, 2019, the document was stricken from the record because it was unsigned. (Doc. No. 16.) However, Plaintiff was informed that he could re-file the document with his original signature. (Id.) To date, Plaintiff has not re-filed the document or otherwise communicated with the Court. 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: (1) 14 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 December 2017 and Plaintiff’s amended 19 complaint is overdue. The Court cannot hold this case in abeyance awaiting 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. 28 Liab. 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 February 12, 2019 order 4 expressly warned Plaintiff that his failure to comply with the Court’s order could result in 5 dismissal of this action. (Doc. No. 13.) Thus, Plaintiff had adequate warning that dismissal could 6 result from his noncompliance. 7 Additionally, at this stage in the proceedings there is little available to the Court which 8 would constitute a satisfactory lesser sanction while protecting the Court from further 9 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 10 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 11 likely to have no effect given that Plaintiff has ceased litigating his case. 12 III. 13 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed for failure 14 Conclusion and Recommendations to obey the Court’s February 12, 2019 order and for Plaintiff’s failure to prosecute this action. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 17 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 18 file written objections with the Court. 19 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 20 objections within the specified time may result in the waiver of the “right to challenge the 21 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 22 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). The document should be captioned “Objections to 23 24 25 IT IS SO ORDERED. Dated: /s/ Barbara March 29, 2019 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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