Anderson v. Hansen et al

Filing 94

ORDER That Plaintiff SHOW CAUSE Why Action Should Not be Dismissed for Failure to File a Pre-Trial Statement, signed by Magistrate Judge Michael J. Seng on 8/1/14. Show Cause Response Due by 8/22/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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IREN ANDERSON,
Plaintiff,

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v.

Case No. 1:09-cv-01924-MJS (PC)
ORDER THAT PLAINTIFF SHOW CAUSE
WHY ACTION SHOULD NOT BE
DISMISSED FOR FAILURE TO FILE A
PRE-TRIAL STATEMENT

RON D. HANSEN, et al.,
(ECF No. 85)

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Defendant(s).

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Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983. This matter proceeds on an excessive force
claim against Defendant Hansen and a failure to intervene claim against Defendant Lewis.
The pretrial conference is set for August 22, 2014 at 1:30 p.m. Trial is set for
September 23, 2014 at 8:30 a.m.
On December 9, 2013, Plaintiff was ordered to file a pre-trial statement by not later
than June 27, 2014. (ECF No. 85.) He was advised that any failure to do so could result in
dismissal of the action or entry of default. (Id.) Plaintiff has not responded to this order.
Local Rule 110 provides that “failure of counsel or of a party to comply with these
Rules or with any order of the Court may be grounds for imposition by the Court of any and
all sanctions . . . within the inherent power of the Court.” District courts have the inherent
power to control their dockets and “in the exercise of that power, they may impose
sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing
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Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice,

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based on a party’s failure to prosecute, failure to obey a court order, or failure to comply

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with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal

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for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992) (dismissal for failure to comply with an order requiring amendment of a complaint);

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with

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local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S.

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Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a

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court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack

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of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey a

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court order, or failure to comply with local rules, the Court must consider several factors: (1)

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the public’s interest in expeditious resolution of litigation, (2) the Court’s need to manage its

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docket, (3) the risk of prejudice to the defendants, (4) the public policy favoring disposition

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of cases on their merits, and (5) the availability of less drastic alternatives. Thompson, 782

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F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at

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1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the public’s interest in expeditiously resolving this litigation and

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the Court’s interest in managing its docket weigh in favor of dismissal. The third factor, risk

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of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury

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arises from the occurrence of unreasonable delay in prosecuting this action. Anderson v.

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Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring

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disposition of cases on their merits -- is greatly outweighed by the factors in favor of

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dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this stage

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in the proceedings there is little available which would constitute a satisfactory lesser

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sanction while preserving scarce Court resources. Plaintiff has not paid the filing fee for this

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action and is likely unable to pay, making monetary sanctions of little use.

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Accordingly, it is HEREBY ORDERED THAT:
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By not later than the above referenced pre-trial conference, Plaintiff shall

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show cause why this action should not be dismissed, with prejudice, for

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failure to comply with the Court’s order that he file a pre-trial statement (ECF

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No. 85) and for failure to prosecute, and

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2.

If Plaintiff fails to show cause, the action will be dismissed, with prejudice.

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IT IS SO ORDERED.
Dated:

August 1, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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