1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA DIAZ, Case No. 1:19-cv-01282-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO

RANDOMLY ASSIGN DISTRICT JUDGE TO

13 v. ACTION 14 CUDAL, et al., FINDINGS AND RECOMMENDATIONS TO

DISMISS ACTION, WITHOUT PREJUDICE,

15 Defendants. FOR FAILURE TO OBEY A COURT ORDER

AND FAILURE TO PROSECUTE

16 (ECF No. 5) 17

FOURTEEN (14) DAY DEADLINE

18 19 I. Background 20 Plaintiff Joshua Diaz (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On September 18, 2019, the Court issued an order striking Plaintiff’s unsigned complaint 24 and requiring Plaintiff to file a signed complaint within thirty (30) days to proceed with this 25 action.1 (ECF No. 5.) The Court expressly warned Plaintiff that his failure to comply with the 26 1 The order also denied Plaintiff’s motion to proceed in forma pauperis, without prejudice, and 27 ordered Plaintiff to file a completed application to proceed in forma pauperis within thirty (30) days. (ECF No. 5.) Plaintiff submitted a completed motion to proceed in forma pauperis on 28 October 31, 2019, (ECF No. 6), and the motion was granted the same day, (ECF No. 7). 1 Court’s order would result in dismissal of this action without prejudice. (Id. at 2.) The deadline 2 has expired, and Plaintiff has failed to file a signed complaint or a notice of voluntary dismissal, 3 as directed. 4 II. Failure to Prosecute and Failure to Obey a Court Order 5 A. Legal Standard 6 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 7 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 8 within the inherent power of the Court.” District courts have the inherent power to control their 9 dockets and “[i]n the exercise of that power they may impose sanctions including, where 10 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 11 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 12 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 13 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 14 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 15 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 16 (dismissal for failure to comply with court order). 17 In determining whether to dismiss an action, the Court must consider several factors: 18 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 19 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 20 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 21 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 22 B. Discussion 23 Here, Plaintiff’s signed complaint is overdue, and he has failed to comply with the Court’s 24 order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, 25 the Court finds that both the first and second factors weigh in favor of dismissal. 26 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 27 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 28 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 1 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 2 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 3 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 4 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 5 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 6 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 7 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 8 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s September 18, 2019 order 9 expressly warned Plaintiff that his failure to file a signed complaint or a notice of voluntary 10 dismissal would result in a recommendation of dismissal of this action, without prejudice. (ECF 11 No. 5, p. 2.) Thus, Plaintiff had adequate warning that dismissal could result from his 12 noncompliance. 13 Additionally, at this stage in the proceedings there is little available to the Court that 14 would constitute a satisfactory lesser sanction while protecting the Court from further 15 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 16 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 17 likely to have no effect given that Plaintiff has ceased litigating his case. 18 III. Conclusion and Recommendation 19 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 20 district judge to this action. 21 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 22 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court 23 order and for Plaintiff’s failure to prosecute this action. 24 These Findings and Recommendation will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 26 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 1 specified time may result in the waiver of the “right to challenge the magistrate’s factual 2 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4

IT IS SO ORDERED.

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6 Dated: November 1, 2019 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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