(PC) Warr v. Cates ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CALVIN WARR, ) Case No.: 1:20-cv-01091-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 CATES, ) ) FINDINGS AND RECOMMENDATION 15 Defendant. ) RECOMMENDING DISMISSAL OF ACTION ) FOR FAILURE TO COMPLY WITH A COURT 16 ) ORDER AND FAILURE TO PROSECUTE ) 17 ) (ECF No. 8) 18 Plaintiff Calvin Warr is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 On September 22, 2020, the Court issued an order striking Plaintiff’s complaint because it was 21 not signed under penalty of perjury, and Plaintiff was directed to file an amended complaint within thirty 22 days. (ECF No. 7.) Plaintiff failed to file an amended complaint or otherwise communicate with the 23 Court. Accordingly, on November 2, 2020, the Court issued an order for Plaintiff to show cause within 24 fourteen days why the action should not be dismissed. (ECF No. 8.) Plaintiff has failed to respond to 25 the Court’s order to show cause and the time to do so has passed. 26 /// 27 /// 28 /// 1 I. 2 DISCUSSION 3 Local Rule 110 provides that “[f]ailure ... of a party to comply with these Rules or with any 4 order of the Court may be grounds for imposition by the Court of any and all sanctions ... within the 5 inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n 6 the exercise of that power they may impose sanctions including, where appropriate, ... dismissal.” 7 Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). 8 A court may dismiss an action based on a party's failure to prosecute an action, failure to obey 9 a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53–54 (9th 10 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 11 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); 12 Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for failure to comply 13 with court order). 14 In determining whether to dismiss an action, the Court must consider several factors: (1) the 15 public's interest in expeditions resolution of litigation; (2) the Court's need to manage its docket; (3) 16 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 17 merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 18 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 19 Here, the action has been pending for several months, and Plaintiff failed to file an amended 20 complaint signed under penalty of perjury. Plaintiff is obligated to comply with the Local Rules in 21 filing a proper complaint. Plaintiff also failed to respond to the Court’s order show cause why this 22 action should not be dismissed. The Court cannot effectively manage its docket if a party ceases 23 litigating the case. Thus, both the first and second factors weigh in favor of dismissal of this action. 24 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, because a 25 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 26 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Because public policy favors disposition on 27 the merits, the fourth factor usually weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 28 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility is to move a 1 case toward disposition on the merits but whose conduct impedes progress in that direction,” which is 2 the case here. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 3 2006). 4 Finally, the Court's warning to a party that failure to obey the Court's order will result in 5 dismissal satisfies the “considerations of the alternatives requirement.” Ferdik, 963 F.2d at 1262; 6 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. 7 The Court's November 2, 2020 order to show cause expressly warned Plaintiff that his failure 8 to comply with the Court's order would result in the dismissal of this matter for failure to prosecute 9 and failure to comply with a court order. (ECF No. 8.) Thus, Plaintiff had adequate warning that 10 dismissal of this action could result from his noncompliance. At this stage in the proceedings there is 11 little available to the Court which would constitute a satisfactory lesser sanction while protecting the 12 Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma 13 pauperis in this action, making monetary sanctions of little use. Accordingly, dismissal of the action 14 is warranted. 15 II. 16 ORDER AND RECOMMENDATION 17 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall randomly 18 assign a Fresno District Judge to this action. 19 Further, it is HEREBY RECOMMENDED that the instant action be dismissed for failure to 20 prosecute and failure to comply with a court order. 21 This Findings and Recommendation will be submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 23 after being served with this Findings and Recommendation, Plaintiff may file written objections with 24 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 25 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 26 /// 27 /// 28 /// 1 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 2 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IS SO ORDERED. ot fe 5 || Dated: _ December 1, 2020 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28