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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JEFFREY MARSHALL,

Plaintiff, No. CIV S-04-1932 LKK GGH PS

vs.

HOME DEPOT, et al.,

Defendants. FINDINGS & RECOMMENDATIONS

 /

By order filed January 9, 2006, plaintiff’s amended complaint was dismissed and

thirty days leave to file a second amended complaint was granted. The thirty day period has now

expired, and plaintiff has not filed a second amended complaint or otherwise responded to the

court’s order.

“District courts have inherent power to control their dockets and may impose

sanctions, including dismissal, in the exercise of that discretion.” Hernandez v. City of El

Monte, 138 F.3d 393, 398 (9th Cir.1998). Before dismissing a case for failure to comply with a

court order, the district court must consider: (1) the public’s interest in expeditious resolution of

litigation, (2) the court’s need to manage its docket, (3) the risk of prejudice to defendants, (4)

the public policy favoring disposition of cases on their merits, and (5) the availability of less

drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986). Pro se litigants are

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bound by the rules of procedure, even though pleadings are liberally construed in their favor. 

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65

(9th Cir. 1986). 

In determining to recommend that this action be dismissed, the court has

considered the factors set forth in Henderson. Plaintiff’s failure to comply with the court’s order

has impeded expeditious resolution of the instant litigation and has burdened the court’s docket,

consuming scarce judicial resources in addressing litigation which plaintiff demonstrates no

intention to pursue. Although public policy favors disposition of cases on their merits, plaintiff’s

failure to respond to the court’s order has precluded the court from considering the merits of this

action. In addition, defendants necessarily are prejudiced by delay in promptly initiating an

action. Finally, the court concludes that there is no suitable alternative sanction, plaintiff

apparently having no intent to conduct this litigation in accord with accepted practice. 

Accordingly, for the reasons set forth in the order filed January 9, 2006, and for

plaintiff’s failure to comply with that order, IT IS HEREBY RECOMMENDED that this action

be dismissed without prejudice. See Local Rule 11-110 (E.D. Cal. 1997); Fed. R. Civ. P. 41(b).

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days

after being served with these findings and recommendations, plaintiff may file written objections

with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

and Recommendations.” Plaintiff is advised that failure to file objections within the

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

F.2d 1153 (9th Cir. 1991).

DATED:2/28/06 

/s/ Gregory G. Hollows

 

UNITED STATES MAGISTRATE JUDGE

GGH:035

marshall.fta

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