Bui v. Lopez, et al

Filing 10

ORDER OF DISMISSAL signed by Magistrate Judge Jennifer L. Thurston on 4/10/2012. CASE CLOSED. (Leon-Guerrero, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SON T. BUI,
Plaintiff,

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v.

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S. LOPEZ, et al.,

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Defendants.

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) Case No.: 1:10-cv-01324 JLT
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) ORDER OF DISMISSAL
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action

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pursuant to 42 U.S.C. § 1983. On March 8, 2012, the Court dismissed Plaintiff’s complaint but

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granted him 21 days to file an amended complaint. (Doc. 9) Despite the passage of more than a month

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since that time, Plaintiff has failed to file his amended complaint.

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I.

Discussion and Analysis

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“District courts have inherent power to control their dockets,” and in exercising that power, a

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court may impose sanctions including dismissal of an action. Thompson v. Housing Authority of Los

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Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a

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party’s failure to prosecute an action or failure to obey a court order, or failure to comply with local

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rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 2995) (dismissal for failure to comply

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with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to
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comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d

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128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan,

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779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).

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In determining whether to dismiss an action for failure to prosecute, failure to obey a court

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order, or failure to comply with the Local Rules, the Court must consider several factors, including:

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“(1) 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 of cases

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on their merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see

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also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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

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Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the

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defendants also weighs in favor of dismissal, since a presumption of injury arises from the occurrence

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of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th

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Cir. 1976). The Court cannot, hold the case in abeyance based upon Plaintiff’s failure to prosecute

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this action. Further, the policy favoring disposition of cases on their merits is outweighed by the

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factors in favor of dismissal.

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In its March 8, 2011 order, the Court warned, “Plaintiff is firmly cautioned that failure to

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comply with this order will result in a recommendation that this action be dismissed.” (Doc. 9 at 6)

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

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Court’s order, and this satisfies the requirement that the Court consider less drastic measures than

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dismissal of the action. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Moreover, no lesser

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sanction is feasible given the Court’s inability to communicate with Plaintiff.

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ORDER

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Plaintiff has failed to prosecute his case, comply with the Court’s orders, and follow the

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requirements of the Local Rules in this action. As set forth above, the factors set forth by the Ninth

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Circuit weigh in favor of dismissal of the matter. Accordingly, IT IS HEREBY ORDERED:

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This action is DISMISSED WITHOUT PREJUDICE; and

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The Clerk of Court is directed to close this action because this order terminates the

action in its entirety.

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IT IS SO ORDERED.

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Dated:

April 10, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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