Negrete v. Bravo et al

Filing 10

ORDER DISMISSING CASE with prejudice signed by Magistrate Judge Michael J. Seng on 4/13/2012. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SERGIO NEGRETE,

CASE NO. 1:10-cv-519-MJS (PC)

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Plaintiff,

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

Defendants.

(ECF No. 9)

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v.
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D. BRAVO, et al.
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ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(G)
/

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Plaintiff Sergio Negrete (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights actions pursuant to 42 U.S.C. § 1983. Plaintiff has
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consented to Magistrate Judge jurisdiction. (ECF No. 5.)
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On March 20, 2012, the Court issued an Order to Show Cause, ordering Plaintiff to
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file an amended complaint by April 3, 2012. (ECF No. 9.) In the alternative, Plaintiff was
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to show cause as to why his case should not be dismissed for failure to comply with a
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Court order and failure to state a claim. (Id.) April 3, 2012, has passed without Plaintiff
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complying with or otherwise responding to the Court’s Order.
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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 and
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all sanctions . . . within the inherent power of the Court.” District courts have the inherent
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power to control their dockets and “in the exercise of that power, they may impose
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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 an action, failure to obey a court order, or failure to

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

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

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(9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

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

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comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone

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

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

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for lack of prosecution and failure to comply with local 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 resolving

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

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

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an

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

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policy favoring disposition of cases on their merits -- is greatly outweighed by the factors

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in favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure

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to obey the court’s order will result in dismissal satisfies the “consideration of alternatives”

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requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson,

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779 F.2d at 1424. The Court’s Order expressly stated: “Failure to meet this deadline will
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result in dismissal of this action.” (ECF No. 9.) Thus, Plaintiff had adequate warning that

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dismissal would result from his noncompliance 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 is

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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 March 20,

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2012, Order (ECF No. 9). This dismissal is subject to the “three-strikes” provision set forth

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in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-15620, 2011 WL 4436248, at *4 (9th Cir.

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Sept. 26, 2011).

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IT IS SO ORDERED.

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Dated:
ci4d6

April 13, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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