Davis v. Kelso et al
Filing
43
ORDER DISMISSING 1 Action without Prejudice for Failure to Obey 42 Court Order signed by District Judge Lawrence J. O'Neill on 11/22/2011. CASE CLOSED. (Sant Agata, S)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
CHARLES T. DAVIS,
10
11
12
CASE NO: 1:10-cv-01184-LJO-GBC (PC)
Plaintiff,
ORDER DISMISSING ACTION WITHOUT
PREJUDICE FOR FAILURE TO OBEY
COURT ORDER
v.
CLARK J. KELSO, et al.,
(Doc. 42)
13
Defendants.
14
/
15
I.
Procedural History
16
Charles T. Davis ("Plaintiff') is a state prisoner proceeding pro se and in forma pauperis
17
("IFP") in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on July 1, 2010.
18
Doc. 1. On October 19, 2011, the Court revoked Plaintiff’s IFP status and ordered Plaintiff to pay
19
the filing fee within thirty days of service of the order or the action would be dismissed without
20
prejudice. Doc. 42. Thirty days has since passed and Plaintiff has failed to comply with the Court’s
21
order and has not otherwise responded to the Court.
22
II.
Failure to Comply With Court Order and Failure to Prosecute
23
Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
24
Rules or with any order of the Court may be grounds for the imposition by the Court of any and all
25
sanctions . . . within the inherent power of the Court.” District courts have the inherent power to
26
control their dockets and “in the exercise of that power, they may impose sanctions including, where
27
appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).
28
1
1
A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
2
failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46
3
F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963
4
F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
5
amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for
6
failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);
7
Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply
8
with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure
9
to lack of prosecution and failure to comply with local rules).
10
In determining whether to dismiss this action for failure to comply with the directives set
11
forth in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious
12
resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to
13
defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy
14
favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.
15
2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
16
‘The public’s interest in expeditious resolution of litigation always favors dismissal.’
17
Pagtalunan v. Galaza, 291 F.3d 639, 642 (quoting Yourish v. California Amplifier, 191 F.3d 983,
18
990 (9th Cir. 1999)). Plaintiff is obligated to comply with the Local Rules and was informed via
19
court order regarding the need pay the filing fee. Doc. 42. The Court cannot effectively manage its
20
docket if a party ceases to obey the orders of the court and litigate the case. Thus, both the first and
21
second factors weigh in favor of dismissal.
22
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and
23
of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the
24
risk that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff’s
25
failure to comply with the Local Rules and the Court’s order that is causing delay. Therefore, the
26
third factor weight in favor of dismissal.
27
As for the availability of lesser sanctions, at this stage in the proceedings there is little
28
available to the Court which would constitute a satisfactory lesser sanction while protecting the
2
1
Court from further unnecessary expenditure of its scare resources and the statutory requirement that
2
Plaintiff pays the filing fee to proceed with the complaint. Finally, because public policy favors
3
disposition on the merits, this factor usually weighs against dismissal. Id. at 643. However, “this
4
factor lends little support to a party whose responsibility it is to move a case toward disposition on
5
the merits but whose conduct impedes progress in that direction,” In re Phenylpropanolamine (PPA)
6
Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (internal quotations and citations
7
omitted), as is the case here.
8
In summary, Plaintiff has failed to comply with the Court order to pay the filing fee to
9
comply with 28 U.S.C. 1915 for proceeding with this action. Thirty days has passed since the Court
10
originally ordered Plaintiff to pay the filing fee and Plaintiff has not responded, despite being
11
notified of the requirement via the Court’s order specifically directing him to respond. Doc. 42.
12
13
III.
Conclusion and Order
14
Since Plaintiff has failed to respond to the Court’s order filed on October 19, 2011, the Court
15
HEREBY ORDERS: Plaintiff’s action is DISMISSED WITHOUT PREJUDICE for failure to obey
16
court orders.
17
IT IS SO ORDERED.
18
Dated:
b9ed48
November 22, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?