Fulton v. Vasquez

Filing 19

ORDER DISMISSING 10 Action(Strike), with Prejudice, for Failure to State a Claim upon which Relief may be Granted under Section 1983 and for Failure to Obey a Court Order; ORDER that Dismissal is Subject to 28 USC 1915(G) signed by Magistrate Judge Michael J. Seng on 3/20/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BILLY FULTON,

1:10-cv-0275-MJS (PC)
Plaintiff,

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ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE
A CLAIM UPON WHICH RELIEF MAY
BE GRANTED UNDER SECTION 1983
AND FOR FAILURE TO OBEY A
COURT ORDER

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v.
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P.L. VASQUEZ,
(ECF No. 18)

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Defendant.

ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(G)

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/
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Plaintiff Billy Fulton(“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights actions pursuant to 42 U.S.C. § 1983. Plaintiff has consented
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to Magistrate Judge jurisdiction. (ECF No. 4.)
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On December 19, 2011, the Court issued an Order to Show Cause, ordering
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Plaintiff to file an amended complaint by January 20, 2012. (ECF No. 18.) In the
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alternative, Plaintiff was to show cause why his case should not be dismissed for failure
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to comply with a Court order and failure to state a claim. (Id.) January 20, 2012, has
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passed without Plaintiff complying with or otherwise responding to the Court’s Order.
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In addition, the Court’s Order to Show Cause, issued on December 19, 2011, was
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returned by the U.S. Postal Service as undeliverable to Plaintiff. Pursuant to Local Rule
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183(b), a party appearing in propria persona is required to keep the Court apprised of his

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or her current address at all times. Local Rule 183(b) provides, in pertinent part:

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If mail directed to a plaintiff in propria persona by the Clerk is
returned by the U.S. Postal Service, and if such plaintiff fails
to notify the Court and opposing parties within sixty-three (63)
days thereafter of a current address, the Court may dismiss
the action without prejudice for failure to prosecute.

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In the instant case, over 63 days have passed since Plaintiff's mail was returned, and he

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has not notified the Court of a current address.

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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: “Failure to meet this deadline will result in dismissal of this action.” (ECF No. 18.)

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Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance

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with the Court’s Order.

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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action

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is HEREBY DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon

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which relief may be granted under section 1983 and failure to obey the Court’s December

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19, 2011, Order (ECF No. 18). This dismissal is subject to the “three-strikes” provision

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set forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-15620, 2011 WL 4436248, at *4

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(9th Cir. Sept. 26, 2011).

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IT IS SO ORDERED.

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Dated:

ci4d6

March 20, 2012

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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