Serrano v. Rawers et al

Filing 64

ORDER to SHOW CAUSE why Case Should Not Be Dismissed with Prejudice for Failure to Comply with Court Order, signed by Magistrate Judge Michael J. Seng on 8/14/15. Show Cause Response Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE L. SERRANO,

CASE NO. 1:11-cv-00399-MJS (PC)

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Plaintiff,

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v.
SCOTT RAWERS, et al.,
Defendants.

ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED WITH
PREJUDICE FOR FAILURE TO COMPLY
WITH COURT ORDER
(ECF No. 48)
FOURTEEN (14) DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 8.) This action

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proceeds on Plaintiff’s First Amended Complaint (ECF No. 6.) against Defendant Lucas

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for violation of Plaintiff’s Eighth Amendment rights. (ECF Nos. 11 & 12.)

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On May 4, 2015, the Court issued a second scheduling order, requiring Plaintiff to

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file and serve a pretrial statement on or before August 6, 2015. (ECF No. 48.) The

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deadline for Plaintiff to file a pretrial statement has passed without Plaintiff filing his

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statement or seeking an extension of time to do so.

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Federal Rules of Civil Procedure 16(f) and 37(b)(2)(A)(v) allow the Court to
dismiss an action for failure to obey a scheduling or other pretrial order. Additionally,

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Rule 41(b) and Local Rule 110 allow for dismissal for failure to comply with any order of
the Court. In determining whether to dismiss an action for failure to comply with a Court
order, the Court must consider several factors: “(1) the public’s interest in expeditious
resolution of litigation; (2) the [C]ourt’s need to manage its docket; (3) the risk of
prejudice to the defendants; (4) the public policy favoring disposition of cases on their
merits and (5) the availability of less drastic alternatives.” Thompson v. Housing Auth.,
782 F.2d 829, 831 (9th Cir. 1986); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986).
Here, the first two factors clearly support dismissal. Plaintiff’s failure to timely file
a pretrial statement creates the possibility that the scheduled telephonic trial confirmation
hearing and trial will be postponed, impeding resolution of this case.
Plaintiff’s conduct also is likely to prejudice Defendant, whose time to file a
responsive pretrial statement may be shortened. Additionally, Plaintiff has not provided
an explanation to excuse his failure to comply with the Court’s order. Accordingly, the
third factor also weights in favor of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d
128, 131 (9th Cir. 1987) (“Whether prejudice is sufficient to support an order of dismissal
is in part judged with reference to the strength of the plaintiff’s excuse for the default.”)
The fourth factor -- public policy favoring disposition of cases on their merits -- is
greatly outweighed by the factors in favor of dismissal discussed herein.
Finally, as for the availability of lesser sanctions, at this stage in the proceedings
there is little available which would constitute a satisfactory lesser sanction while
preserving scarce Court resources. Plaintiff has not paid the filing fee for this action and
likely is unable to pay, making monetary sanctions of little use.
Accordingly, it is HEREBY ORDERED THAT:
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Within fourteen (14) days of service of this Order, Plaintiff shall either show
cause as to why this action should not be dismissed with prejudice for
failure to comply with the Court’s second scheduling order (ECF No. 48.),
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or file a pretrial statement; and
2.

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If Plaintiff fails to show cause or file a pretrial statement, the undersigned
shall dismiss this action, with prejudice, subject to the “three strikes”

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provision set forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658 F.3d

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1090 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:

August 14, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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