Washington v. Scribner, et al

Filing 91

ORDER Dismissing Action for Plaintiff's Failure to Comply With a Court Order, signed by District Judge Lawrence J. O'Neill on 4/20/11. CASE CLOSED. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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RODERICK WASHINGTON,
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Plaintiff,
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v.
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A, K. SCRIBNER, et al.,
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Defendants.
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____________________________________)

NO. 1:03-cv-05287 LJO GSA PC
ORDER DISMISSING THIS ACTION
FOR PLAINTIFF’S FAILURE TO
COMPLY WITH A COURT ORDER

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Plaintiff is a state prisoner proceeding pro se in this civil rights action. The matter was

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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

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302.

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On March 16, 2011, an order was entered in this case, noting that Washington v. Early, et

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al, 1:03 cv 05263 LJO SMS PC, was dismissed for Plaintiff’s failure to respond to an order to

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show cause why his action should not be dismissed. In the March 16, 2011 order, Plaintiff was

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directed to notify the Court within twenty days regarding his intention to proceed in this action.

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Plaintiff failed to file a response, and on April 6, 2011, an order to show cause was entered,

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directing Plaintiff to show cause, within ten calendar days, why this action should not be

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dismissed, with prejudice, for his failure to prosecute. Plaintiff has not filed a response to the

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order to show cause.

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The failure to obey a scheduling order is grounds for imposition of sanctions. In the

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March 16, 2011, order directing Plaintiff to notify the Court of his intention to proceed, Plaintiff

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was warned that his failure to respond would result in dismissal. The April 6, 2011, order to

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show cause cautioned Plaintiff that his failure to respond would result in dismissal of this action

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with prejudice. More than ten days have passed, and Plaintiff has not filed a response to the

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order to show cause.1

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“A scheduling order is not a frivolous piece of paper, idly entered . . . .” Johnson v.

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Mammoth Recreations, Incl, 975 F.2d 604, 610 (9th Cir. 1992)(internal quotation marks and

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citation omitted). Parties are required to exercise due diligence, Zivkovic v. Southern California

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Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)(citing Johnson, 975 F.2d at 609), and the Court

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finds that Plaintiff’s failure to file a pretrial statement and failure to respond to the order to show

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cause warrant the imposition of sanctions.

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The Court has the inherent power to control its docket and may, in the exercise of that

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power, impose sanctions where appropriate, including dismissal of this action. Bautista v. Los

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Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action

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for failure to comply with an order, the Court must weigh “(1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the

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defendants: (4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) Products Liability

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Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006)(internal quotations and citations omitted). These

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factors guide a court in deciding what to do and are not conditions that must be met in order for a

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court to take action. In re PPA, 460 F.3d at 1226 (citation omitted).

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The expeditious resolution of litigation and the Court’s need to manage its own docket

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weigh in favor of dismissal. See id. at 1227. Plaintiff had ample time to respond to the order

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directing him to inform the Court of his intention to proceed and to the order to show cause. The

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Because Plaintiff is no longer incarcerated, what is commonly referred to as the prison mailbox rule does
not apply. Caldwell v. Amend, 30 F.3d 1199, 1202 (9th Cir. 1994); Houston v. Lack, 487 U.S. 266, 270 (1988).

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Court has an enormous caseload, and when litigants disregard orders of the court and deadlines,

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the Court’s ability to manage its docket and guide cases toward resolution is significantly

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compromised. See id.

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As for the risk of prejudice to Defendants, there is no identifiable prejudice in this

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instance. See id. At 1227-28. Regarding the fourth factor, while public policy favors disposition

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on the merits and weights against dismissal, it is Plaintiff’s own conduct which is at issue here

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and which has stalled this case. See id. at 1228. Finally, there are no alternative sanctions which

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are satisfactory. Monetary sanctions are not available given that Plaintiff is proceeding in forma

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pauperis. In sum, the Court finds dismissal is warranted given Plaintiff’s failure to respond to an

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order specifically directed at his intention to proceed, and the unavailability of satisfactory

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alternative sanctions. See id. At 1228-29.

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed, with prejudice,

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based on Plaintiff’s failure to respond to the March 16, 2011, order and the April 6, 2011, order

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to show cause. The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:
b9ed48

April 20, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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