Thomas v. Razo, et al.

Filing 61

ORDER vacating telephonic trial confirmation hearing and trial date signed by District Judge Anthony W. Ishii on 1/13/2013. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT THOMAS,

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Plaintiff,
v.
J. RAZO, et al.,
Defendants.

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CASE: 1:10 -CV-2173 AWI DLB
(PC)
ORDER VACATING TELEPHONIC
TRIAL CONFERMATION
HEARING AND TRIAL DATE
BASED ON PLAINTIFF’S FAILURE
TO FILE A PRETRIAL
STATEMENT AND/OR RESPOND
TO THE COURT’S ORDER TO
SHOW CAUSE

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Plaintiff Robert Thomas (“Plaintiff”) is a California state prisoner proceeding
pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This action has been set for trial to begin February 25, 2014, on Plaintiff’s Eighth

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Amendment excessive force claims against Defendants Razo, Moreno, Brown,

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Vera, Vasquez and Holguin. The Telephonic Trial Confirmation Hearing is

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currently set for January 13, 2014. The Court previously ordered Plaintiff to file his

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pretrial statement and any motion for the attendance of incarcerated witnesses no

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later than December 16, 2013.

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When Plaintiff did not file his pretrial statement or any other motion by

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December 16, 2013, the Court ordered Plaintiff to show cause why this action

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should not be dismissed for Plaintiff’s failure to prosecute within ten days. Well

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over ten days has passed, and Plaintiff has not responded to the Court’s order to

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show cause.

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This Court may dismiss an action, with prejudice, based on a party’s failure to

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prosecute an action or failure to obey a court order. Ferdik v. Bonzelet, 963 F.2d

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1258, 1260-61 (9th Cir. 1992). In determining whether to dismiss an action for

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failure to prosecute and comply with court orders, “the Court must weigh the

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following factors: (1) the public’s interest in expeditious resolution of litigation; (2)

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the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the

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availability of less drastic alternatives; and (5) the public policy favoring disposition

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of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002);

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

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In this action, Plaintiff has failed to file either a pretrial statement or a
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response to the Court’s order to show cause. At this time, the Court must use any

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previously reserved dates to devote to those cases in which the Plaintiff is actually

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proceeding.

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Accordingly, the Court ORDERS that:

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1.

The Telephonic Trial Confirmation set for January 13, 2014 is

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VACATED;
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The February 25, 2014 trial date is VACATED; and

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This action is referred to the Magistrate Judge to review whether this

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action should immediately be dismissed for Plaintiff’s failure to prosecute.

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IT IS SO ORDERED.

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Dated: January 13, 2014
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SENIOR DISTRICT JUDGE
DEAC_Signature-END:

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