Banuelos v. Reyes ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ROBERT BANUELOS, Case No. 1:19-cv-01328-DAD-BAM 8 Plaintiff, FINDINGS AND RECOMMENDATIONS 9 v. REGARDING DISMISSAL OF ACTION FOR FAILURE TO OBEY A COURT ORDER AND 10 ANTHONY TONY REYES, FAILURE TO PROSECUTE 11 Defendant. (Doc. No. 5) 12 FOURTEEN (14) DAY DEADLINE 13 14 Plaintiff Robert Banuelos (“Plaintiff”), proceeding pro se and in forma pauperis, filed this 15 civil rights action on September 23, 2019. (Doc. No. 1.) 16 On July 28, 2020, the Court screened Plaintiff’s complaint and granted him leave to 17 amend within thirty (30) days of service of the Court’s order. (Doc. No. 5.) Plaintiff was 18 expressly warned that if he failed to file an amended complaint in compliance with the Court’s 19 order, the Court would recommend dismissal of this action for failure to obey a court order and 20 for failure to state a claim. (Id.) 21 The deadline for Plaintiff to file his amended complaint have passed and Plaintiff has not 22 complied with the Court’s order. 23 I. Discussion 24 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 25 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 26 within the inherent power of the Court.” District courts have the inherent power to control their 27 dockets and “[i]n the exercise of that power they may impose sanctions including, where 28 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 1 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 2 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 3 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 4 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 5 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 6 (dismissal for failure to comply with court order). 7 In determining whether to dismiss an action, the Court must consider several factors: (1) 8 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 9 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 10 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 11 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 12 Here, this action has been pending since September 2019 and Plaintiff’s amended 13 complaint is overdue. The action cannot proceed without Plaintiff’s cooperation and compliance 14 with the Court’s order. Moreover, the Court cannot hold this case in abeyance awaiting 15 compliance by Plaintiff. The Court additionally cannot effectively manage its docket if Plaintiff 16 ceases litigating his case. Thus, the Court finds that both the first and second factors weigh in 17 favor of dismissal. 18 The third factor, risk of prejudice to the defendant, also weighs in favor of dismissal, as a 19 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 20 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs 21 against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 22 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 23 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 24 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Prods. 25 Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 26 Finally, the Court’s warning to a party that failure to obey the Court’s order will result in 27 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 28 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s July 28, 2020 order expressly 1 warned Plaintiff that his failure to comply would result in a recommendation for dismissal of this 2 action. (Doc. No. 5.) Thus, Plaintiff had adequate warning that dismissal could result from his 3 noncompliance. 4 Additionally, at this stage in the proceedings there is little available to the Court that 5 would constitute a satisfactory lesser sanction while protecting the Court from further 6 unnecessary expenditure of its scarce resources. Plaintiff’s initial application to proceed in forma 7 pauperis in this action indicates that monetary sanctions are of little use, and the preclusion of 8 evidence or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case. 9 II. Conclusion and Order 10 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, without 11 prejudice, for Plaintiff’s failure to obey the Court’s order and failure to prosecute this action. 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 15 file written objections with the Court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 17 objections within the specified time may result in the waiver of the “right to challenge the 18 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 19 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 20 21 Dated: September 22, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28