Butler v. Onyejie et al

Filing 86

ORDER DISMISSING Action for Failure to Obey a Court Order 83 , signed by Magistrate Judge Michael J. Seng on 4/4/14: Clerk Shall Close Case. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERRY C. BUTLER,

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Plaintiff,
v.

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DR. O. ONYEJIE,
Defendant.

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Case No.: 1:11-cv-0723-MJS
ORDER DISMISSING ACTION FOR FAILURE
TO OBEY A COURT ORDER
(ECF No. 83)

CLERK SHALL CLOSE CASE

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Plaintiff Perry C. Butler (“Plaintiff”) is a former state prisoner proceeding pro se in this

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civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to Magistrate

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Judge jurisdiction. (ECF Nos. 32, 44.)

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On January 23, 2014 the Court denied the parties’ motions for summary judgment.

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(ECF No. 77.)

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things, ordered Plaintiff to serve a pretrial statement on or before February 28, 2014. (ECF

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No. 79.) That deadline passed without Plaintiff having filed a pretrial statement or a request

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for an extension of time to do so.

Thereafter a Second Scheduling Order was issued which, among other

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The Court, on March 14, 2014, issued an order to show cause, directing Plaintiff to file

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a pretrial statement by March 28, 2014. (ECF No. 83.) In the alternative, Plaintiff was to

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show cause as to why his case should not be dismissed for failure to comply with a court
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order.

(Id.)

March 28, 2014, has passed without Plaintiff complying with or otherwise

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responding 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 and

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

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power to control their dockets and “in the exercise of that power, they may impose sanctions

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including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d

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829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s

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failure to prosecute an action, failure to obey a court order, or failure to comply with local

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rules.

See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

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(dismissal for failure to comply with an order requiring amendment of a complaint); Carey v.

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King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule

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requiring pro se plaintiffs to keep court apprised of address); Malone v. United States Postal

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Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order);

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution

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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 a

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

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

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

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cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782

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F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at

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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 resolving

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this litigation and the Court’s interest in managing its docket weigh in favor of dismissal. The

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third 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 an
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action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public

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policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in

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favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure to

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obey the court’s order will result in dismissal satisfies the “consideration of alternatives”

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requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 21 779 F.2d at

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1424. The Court’s order expressly stated: “If Plaintiff fails to show cause or file a pretrial

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statement, this action will be dismissed for failure to obey a court order.” (ECF No. 83.)

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

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the Court’s order.

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Based on the foregoing, the Court ORDERS that this action be HEREBY DISMISSED,

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with prejudice, based on Plaintiff’s failure to obey the Court’s March 14, 2014, order (ECF

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No. 83).

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IT IS SO ORDERED.

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Dated:

April 4, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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