Hunter v. Director of Corrections, et al

Filing 11

ORDER DISMISSING PLAINTIFF'S COMPLAINT For Failure to Comply With a Court Order 10 , signed by Magistrate Judge Michael J. Seng on 10/25/2011. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEWITT LEWY HUNTER,

1:09-cv-02203-MJS (PC)

Plaintiff,

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ORDER DISMISSING PLAINTIFF’S
COMPLAINT FOR FAILURE TO
COMPLY WITH A COURT ORDER

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v.
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(ECF No. 10)
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DIRECTOR OF CORRECTIONS, et
al.,

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Defendants.

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Plaintiff Dewitt Lewy Hunter (“Plaintiff”) is a state prisoner proceeding pro se and
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in forma pauperis in his civil rights actions pursuant to 42 U.S.C. § 1983. Plaintiff has
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consented to the Magistrate Judge handling all matters in this action. (Consent, ECF No.
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4.)
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On September 1, 2011, the Court issued an Order to Show Cause, ordering
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Plaintiff to file an amended complaint, by September 30, 2011. (Order, ECF No. 10.) In
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the alternative, Plaintiff was to show cause why his case should not be dismissed for
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failure to comply with a Court order and for failure to state a claim. (Id.) The September
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30, 2011 deadline has passed and Plaintiff has not complied with or otherwise responded
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to the Court’s Order. Plaintiff has not filed an amended complaint or shown cause why
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his case should not be dismissed.

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Local Rule 110 provides that “failure of counsel or of a party to comply with these

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Rules or with any order of the Court may be grounds for imposition by the Court of any

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and all sanctions . . . within the inherent power of the Court.” District courts have the

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inherent power to control their dockets and “in the exercise of that power, they may

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impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with

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prejudice, based on a party’s failure to prosecute an action, failure to obey a court order,

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or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)

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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

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(dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey

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

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the public’s interest in expeditiously

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resolving this litigation and the Court’s interest in managing its docket weigh in favor of

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dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of

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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay

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in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The

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fourth factor -- public policy favoring disposition of cases on their merits -- is greatly

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outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s

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warning to a party that his failure to obey the court’s order will result in dismissal satisfies

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the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;

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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s Order expressly

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stated: “Plaintiff is hereby on notice that failure to meet this deadline will result in dismissal

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of this action for failure to prosecute.” (Order, ECF No. 10.) Thus, Plaintiff had adequate

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warning that dismissal would result from his noncompliance with the Court’s Order.

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Accordingly, the Court hereby ORDERS that this action be dismissed with prejudice

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for failure to comply with the Court’s September 1, 2011 Order. (Order, ECF No. 10.)

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This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g).

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Silva v. Vittorio, No. 08-15620, 2011 WL 4436248, at *4 (9th Cir. Sept. 26, 2011).

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IT IS SO ORDERED.
Dated:

ci4d6

October 25, 2011

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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