Toth v. Schwarzenegger, et al.

Filing 14

ORDER DISMISSING ACTION for Failure to State a Claim and Failure to Prosecute signed by Magistrate Judge Michael J. Seng on 11/21/2012. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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R.C. TOTH,

1:11-cv-0247-MJS (PC)
Plaintiff,

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ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM AND
FAILURE TO PROSECUTE

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v.

(ECF No. 13)

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GOVERNOR ARNOLD
SCHWARZENEGGER, et al.,

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Defendants.

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Plaintiff R.C. Toth (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights actions pursuant to 42 U.S.C. § 1983. Plaintiff has consented

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to Magistrate Judge jurisdiction. (ECF No. 8.)

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On October 31, 2012, the Court issued an order to show cause, ordering Plaintiff

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to show cause why his case should not be dismissed for failure to state a claim and failure

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to prosecute. (ECF No. 13.) Plaintiff was to show cause by November 14, 2012.

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November 14, 2012, has passed without Plaintiff complying with or otherwise responding

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to the Court’s order.

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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 an action, failure to obey a court order,

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or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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

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

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(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)

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(dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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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 factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the public’s interest in expeditiously

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resolving this litigation and the Court’s interest in managing its docket weigh in favor of

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dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of

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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay

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in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The

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fourth factor -- public policy favoring disposition of cases on their merits -- is greatly

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outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s

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warning to a party that his failure to obey the court’s order will result in dismissal satisfies

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the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;

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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s Order expressly

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stated: “Failure to meet this deadline will result in dismissal of this action.” (ECF No. 13.)

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

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with the Court’s Order.

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Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action

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is HEREBY DISMISSED, with prejudice, based on Plaintiff’s failure to state a claim upon

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which relief may be granted under § 1983 and failure to obey the Court’s October 31,

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2012, Order (ECF No. 13). This dismissal is subject to the “three-strikes” provision set

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forth in 28 U.S.C. § 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098-1099 (9th Cir. 2011)

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.

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IT IS SO ORDERED.

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Dated:

ci4d6

November 21, 2012

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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