(PC) Cox v. North Kern State Prison Officials, No. 1:2021cv00860 - Document 12 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Action, Without Prejudice, For Failure to Obey a Court 7 Order and Failure to Prosecute, signed by Magistrate Judge Barbara A. McAuliffe on 08/02/2021. Referred to Judge Unassigned DJ. Objections to F&R Due Within Fourteen-Days. (Maldonado, C)

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(PC) Cox v. North Kern State Prison Officials Doc. 12 Case 1:21-cv-00860-NONE-BAM Document 12 Filed 08/02/21 Page 1 of 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DONNELL COX, 10 Plaintiff, 11 12 13 v. NORTH KERN STATE PRISON OFFICIALS, Defendant. 14 15 Case No. 1:21-cv-00860-NONE-BAM (PC) I. FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITHOUT PREJUDICE, FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (ECF No. 7) FOURTEEN (14) DAY DEADLINE Background Plaintiff Donnell Cox (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 17 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 18 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On June 15, 2021, the Court granted Plaintiff’s motion to amend the complaint and 19 20 ordered Plaintiff to file a first amended complaint within thirty (30) days. (ECF No. 7.) The 21 Court expressly warned Plaintiff that failure to comply with the Court’s order would result in 22 dismissal of this action for failure to prosecute and failure to obey a court order. (Id. at 3.) The 23 deadline has expired, and Plaintiff has failed to file a first amended complaint or otherwise 24 communicate with the Court. 25 II. Failure to Prosecute and Failure to Obey a Court Order 26 A. 27 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 28 Legal Standard any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 1 Dockets.Justia.com Case 1:21-cv-00860-NONE-BAM Document 12 Filed 08/02/21 Page 2 of 3 1 within the inherent power of the Court.” District courts have the inherent power to control their 2 dockets and “[i]n the exercise of that power they may impose sanctions including, where 3 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 4 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 5 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 6 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 7 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 8 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 9 (dismissal for failure to comply with court order). 10 In determining whether to dismiss an action, the Court must consider several factors: 11 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 12 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 13 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 14 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 15 B. Discussion 16 Here, Plaintiff’s first amended complaint is overdue and he has failed to comply with the 17 Court’s order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 18 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 19 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 20 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 21 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 22 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 23 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 24 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 25 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 26 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 27 28 Finally, the Court’s warning to a party that failure to obey the court’s order will result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 2 Case 1:21-cv-00860-NONE-BAM Document 12 Filed 08/02/21 Page 3 of 3 1 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s June 15, 2021 order expressly 2 warned Plaintiff that his failure to comply with the Court’s order would result in a dismissal of 3 this action. (ECF No. 7.) Thus, Plaintiff had adequate warning that dismissal could result from 4 his noncompliance. 5 Additionally, at this stage in the proceedings there is little available to the Court that 6 would constitute a satisfactory lesser sanction while protecting the Court from further 7 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 8 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 9 likely to have no effect given that Plaintiff has ceased litigating his case. 10 III. Conclusion and Recommendation 11 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY 12 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court 13 order and for Plaintiff’s failure to prosecute this action. 14 These Findings and Recommendation will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 16 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 17 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 19 specified time may result in the waiver of the “right to challenge the magistrate’s factual 20 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 25 IT IS SO ORDERED. Dated: /s/ Barbara August 2, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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