Turner, II v. Hartley et al

Filing 11

ORDER Dismissing Action for Failure to Obey Court Order, signed by Magistrate Judge Gerald B. Cohn on 8/8/11. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RICHARD J. TURNER, II,

Case: No. 1:10-cv-01490-GBC (PC)

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ORDER DISMISSING ACTION FOR FAILURE
TO OBEY COURT ORDER

Plaintiff,
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v.

(Doc. 10)

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JAMES D. HARTLEY, et al.,
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Defendants.
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I.

Factual and Procedural Background

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Richard J. Turner (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. On August 18, 2010, Plaintiff filed his

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original complaint. (Doc. 1). On June 27, 2011, the Court struck Plaintiff’s original complaint for

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lack of signature and ordered Plaintiff to resubmit complaint with a signature. (Doc. 10). To date,

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Plaintiff as failed to respond to the order.

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II.

Failure to Comply With Court Order and Failure to Prosecute

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

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

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

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control their dockets and “in the exercise of that power, they may impose sanctions including, where

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appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).
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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46

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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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

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

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

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

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to lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss this action for failure to comply with the directives set

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forth in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy

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favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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‘The public’s interest in expeditious resolution of litigation always favors dismissal.’

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (quoting Yourish v. California Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999)). Plaintiff is obligated to comply with the Local Rules and was informed via

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court order regarding the need resubmit a complaint with his signature. (Doc. 10). The Court’s

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effort was met with silence from Plaintiff, and the Court cannot effectively manage its docket if a

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party ceases litigating the case. Thus, both the first and second factors weigh in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and

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of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the

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risk that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff’s

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failure to comply with the Local Rules and the Court’s order that is causing delay. Therefore, the

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third factor weight in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the
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Court from further unnecessary expenditure of its scare resources. As Plaintiff is proceeding in

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forma pauperis in this action, making monetary sanctions is of little use, and given this stage of the

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proceedings, the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff

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has ceased litigating his case.

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Finally, because public policy favors disposition on the merits, this factor usually weighs

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against dismissal. Id. at 643. However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d

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1217, 1228 (9th Cir. 2006) (internal quotations and citations omitted), as is the case here.

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In summary, Plaintiff filed this action but is no longer prosecuting it. More than a month has

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passed since the Court originally ordered Plaintiff to resubmit the complaint with his signature, and

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Plaintiff has not responded, despite being notified of the requirement via the Court’s order

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specifically directing him to respond. (Doc. 10).

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III.

Conclusion and Order

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Since Plaintiff has failed to respond to the Court’s orders on June 27, 2011, the Court

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HEREBY ORDERS: Plaintiff’s action is DISMISSED WITHOUT PREJUDICE for failure to obey

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court orders.

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IT IS SO ORDERED.

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Dated:
0jh02o

August 8, 2011
UNITED STATES MAGISTRATE JUDGE

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