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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 NANCY D. HAMILTON, Case No. 1:19-cv-00925-AWI-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING DISMISSING ACTION

13 v. FOR LACK OF JURISDICTION AND

FAILURE TO COMPLY WITH COURT

14 GARY G. BAGDESORIAN, et al., ORDER

15 Defendants. (ECF Nos. 1, 4)

16 OBJECTIONS DUE WITHIN THIRTY

DAYS

17 18 Nancy D. Hamilton (“Plaintiff”), proceeding pro se and in forma pauperis, filed this 19 action pursuant to 42 U.S.C. § 1983. The matter was referred to a magistrate judge pursuant to 20 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On July 11, 2019, the court screened Plaintiff’s 21 complaint and found that Plaintiff had failed to allege any claims over which this court had 22 jurisdiction. (ECF No. 4.) Plaintiff was provided with the legal standards and ordered to file an 23 amended complaint within thirty days. (Id.) More than thirty days have passed and Plaintiff has 24 not filed an amended complaint or otherwise responded to the Court’s July 11, 2019 order. 25 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 26 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 27 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to control its docket and may, in the exercise of that power, impose sanctions where appropriate, 1 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 3 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 4 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 5 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 6 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 7 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 8 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 9 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 10 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 11 of prosecution and failure to comply with local rules). Where a plaintiff fails to file an amended 12 complaint after being provided with leave to amend to cure the failure to state a claim, a district 13 court may dismiss the entire action. Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). 14 In determining whether to dismiss an action for failure to comply with a pretrial order, 15 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 16 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 17 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 18 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 19 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 20 1986). These factors guide a court in deciding what to do, and are not conditions that must be 21 met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 22 Litigation, 460 F.3d at 1226. 23 In this instance the public’s interest in expeditious resolution of the litigation and the 24 Court’s need to manage its docket weigh in favor of dismissal. Plaintiff was ordered to file an 25 amended complaint to cure the deficiencies that were identified in her complaint within thirty 26 days of July 11, 2019. Plaintiff’s complaint, filed July 8, 2019, failed to allege any facts or 27 identify a claim that arose under federal law that was at issue in the action. Plaintiff has been 1 amended complaint. Plaintiff has neither filed an amended complaint nor otherwise responded to 2 the Court’s order. The Court can only assume that Plaintiff has chosen not to amend her 3 complaint because she does not have a federal cause of action over which this court has 4 jurisdiction. Further, Plaintiff’s failure to comply with the orders of the Court hinders the 5 Court’s ability to move this action towards disposition, and indicates that Plaintiff does not 6 intend to diligently litigate this action. 7 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 8 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 9 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of 10 dismissal. 11 The public policy in favor of deciding cases on their merits is greatly outweighed by the 12 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This 13 action can proceed no further without Plaintiff’s cooperation and compliance with the order at 14 issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. In this 15 instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s order. 16 Finally, a court’s warning to a party that their failure to obey the court’s order will result 17 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 18 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s July 11, 2019 order requiring 19 Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an amended 20 complaint in compliance with this order, the Court will recommend to the district judge that this 21 action be dismissed consistent with the reasons stated in this order.” (ECF No. 4 at 8:18-20.) 22 Thus, Plaintiff had adequate warning that dismissal of this action would result from her failure to 23 allege facts to state a claim that arose under federal law and her failure to file an amended 24 complaint in compliance with the July 11, 2019 order. 25 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED for lack 26 of jurisdiction and failure to comply with the Court’s July 11, 2019 order. 27 This findings and recommendations is submitted to the district judge assigned to this 1 | days of service of this recommendation, Plaintiff may file written objections to this findings and 2 | recommendations with the court. Such a document should be captioned “Objections to 3 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 4 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 5 | Plaintiff is advised that failure to file objections within the specified time may result in the 6 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 7 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 IT IS SO ORDERED. OF a Se 19 | Dated: _ August 19, 2019 ;

UNITED STATES MAGISTRATE JUDGE

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