Jamison v. Capello et al
Filing
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ORDER to SHOW CAUSE why Case Should not be Dismissed for Failure to Obey Court Order and Failure to Prosecute signed by Magistrate Judge Michael J. Seng on 02/17/2015. Show Cause Response due by 3/9/2015.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WILLIE JAMISON,
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Plaintiff,
v.
M. CAPELLO, et al.,
Defendants.
CASE NO. 1:10-cv-01633-MJS (PC)
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
FAILURE TO OBEY COURT ORDER AND
FAILURE TO PROSECUTE
(ECF No. 32)
FOURTEEN (14) DAY DEADLINE
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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought
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pursuant to 42 U.S.C. § 1983. The action proceeds against Defendant Capello on
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Plaintiff’s Eighth Amendment excessive force claim, and against Defendants Capello and
Kuntz on Plaintiff’s Eight Amendment deliberate indifference and Fourteenth
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Amendment equal protection claims. (ECF No. 16.)
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Defendants filed a motion for summary judgment on November 20, 2014. (ECF
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No. 30.) Plaintiff did not file an opposition or statement of non-opposition as required
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under Local Rule 230(l). Accordingly, on January 7, 2014, the Court advised Plaintiff of
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his rights, obligations, and methods for opposing Defendants’ motion, and afforded
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Plaintiff an additional twenty-one days to file an opposition or statement of non26
opposition. (ECF No. 32.) Plaintiff was warned that his failure to file an opposition or
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statement of non-opposition could result in dismissal of the action for failure to
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prosecute.
The twenty-one day deadline passed without Plaintiff either filing an opposition or
statement of non-opposition, or seeking an extension of time to do so.
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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, failure to obey a court order, or failure
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to 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-
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61 (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
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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
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comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
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(dismissal 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
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factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need
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to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy
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favoring disposition of cases on their merits, and (5) the availability of less drastic
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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833
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F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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In the instant case, the public’s interest in expeditiously resolving this litigation
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and the Court’s interest in managing its docket weigh in favor of dismissal. The third
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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
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this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor –
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public policy favoring disposition of cases on their merits – is greatly outweighed by the
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factors in favor of dismissal discussed herein. Finally, as for the availability of lesser
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sanctions, at this stage in the proceedings there is little available which would constitute
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a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff is likely
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unable to pay monetary sanction, making such sanctions of little use.
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Based on the foregoing, it is HEREBY ORDERED that:
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1. Within fourteen (14) days of service of this order, Plaintiff shall either show
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cause as to why this action should not be dismissed with prejudice for
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failure to comply with the Court’s order (ECF No. 32) and failure to
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prosecute, or file an opposition or statement of non-opposition to
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Defendants’ motion for summary judgment;
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2. If Plaintiff fails to show cause or file an opposition or statement of non-
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opposition, the undersigned will dismiss the action with prejudice for failure
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to obey a court order and failure to prosecute.
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IT IS SO ORDERED.
Dated:
February 17, 2015
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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