Figueroa v. California of Correction Health Department et al

Filing 9

ORDER DISMISSING 1 Action (Strike) for Failure to Obey 8 Court Order and Failure to State a Claim; DISMISSAL COUNTS AS STRIKE signed by Magistrate Judge Dennis L. Beck on 8/25/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GEORGE FIGUEROA,

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CASE NO. 1:10-CV-02032-DLB PC

Plaintiff,

ORDER DISMISSING ACTION FOR
FAILURE TO OBEY COURT ORDER AND
FAILURE TO STATE CLAIM

v.
CALIFORNIA OF CORRECTION HEALTH
DEPARTMENT, et al.,

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(DOC. 8)
DISMISSAL COUNTS AS STRIKE
PURSUANT TO 28 U.S.C. § 1915(G)

Defendants.
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Plaintiff George Figueroa (“Plaintiff”) was formerly a prisoner in the custody of the

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California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro

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se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed

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his complaint on November 1, 2010. On May 9, 2011, the Court dismissed Plaintiff’s complaint

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for failure to state a claim, with leave to amend within thirty days. On July 12, 2011, the Court

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issued an order to show cause why this action should not be dismissed for Plaintiff’s failure to

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obey a court order and failure to state a claim. Plaintiff was ordered to file a response within

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thirty days. As of the date of this order, Plaintiff has not filed an amended complaint or

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otherwise responded.

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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

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

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to control their dockets and “in the exercise of that power, they may impose sanctions including,
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where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to

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prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g.,

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Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance with local

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rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply

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with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th

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Cir. 1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal

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

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1986)(dismissal for failure to lack of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey a

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court order, or failure to comply with local rules, the court must consider several factors: (1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61;

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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 this

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litigation and the court’s interest in managing the 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 presumption of

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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v.

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

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disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal

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discussed herein. Finally, a court’s warning to a party that his failure to obey the court’s order

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will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963

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F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The court’s order

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expressly stated: “Failure to timely respond or to show cause will result in dismissal of this

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action for failure to obey a court order and failure to state a claim.” Thus, Plaintiff had adequate
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warning that dismissal would result from his noncompliance with the court’s order.
Based on the foregoing, it is HEREBY ORDERED that this action is dismissed for

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Plaintiff’s failure to obey the Court’s July 12, 2011 Order, and for failure to state a claim. This

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dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:
3b142a

August 25, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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