East v. Tuvera et al

Filing 11

ORDER DISMISSING ACTION for Failure to Obey Court Order, signed by District Judge Lawrence J. O'Neill on 9/7/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EBONE LEROY EAST

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CASE NO: 1:11-cv-00932-LJO-GBC (PC)

Plaintiff,

ORDER DISMISSING ACTION FOR
FAILURE TO OBEY COURT ORDER

v.
(Doc. 9)

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L. TUVERA, et al.,

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Defendants.
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/

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I.

Procedural History

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Plaintiff Ebone Leroy East, is a state prisoner proceeding pro se and in forma pauperis
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(“IFP”). On June 9, 2011, Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 and
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motioned to proceed IFP. (Docs. 1, 2). The matter was referred to a United States Magistrate Judge
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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On June 9, 2011, the Magistrate Judge
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granted Plaintiff’s motion to proceed IFP. (Doc. 4). On June 21, 2010, the Magistrate Judge issued
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an order to show cause as to why Plaintiff’s in forma pauperis status should not be revoked pursuant
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to 28 U.S.C. 1915(g). (Doc. 5). After Plaintiff filed a response to the order to show cause, the Court
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revoked IFP and ordered Plaintiff to pay the filing fee within thirty days of service of the order or
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the action would be dismissed without prejudice. (Doc. 9).
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II.

Failure to Comply With Court Order and Failure to Prosecute

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

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

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appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).

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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46

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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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

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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure

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to lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss this action for failure to comply with the directives set

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forth in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy

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

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2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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‘The public’s interest in expeditious resolution of litigation always favors dismissal.’

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (quoting Yourish v. California Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999)). Plaintiff is obligated to comply with the Local Rules and was informed via

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court order regarding the need pay the filing fee. (Doc. 9). The Court’s effort was met with silence

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from Plaintiff, and the Court cannot effectively manage its docket if a party ceases to obey the orders

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of the court and litigate the case. Thus, both the first and second factors weigh in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and

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of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the

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risk that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff’s

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failure to comply with the Local Rules and the Court’s order that is causing delay. Therefore, the
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third factor weight in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scare resources and the statutory requirement that

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Plaintiff pays the filing fee to proceed with the complaint. Finally, because public policy favors

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disposition on the merits, this factor usually weighs against dismissal. Id. at 643. However, “this

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factor lends little support to a party whose responsibility it is to move a case toward disposition on

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the merits but whose conduct impedes progress in that direction,” In re Phenylpropanolamine (PPA)

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Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (internal quotations and citations

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omitted), as is the case here.

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In summary, Plaintiff has failed to comply with the Court order to pay the filing fee to

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comply with 28 U.S.C. 1915 for proceeding with this action. More than a month has passed since

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the Court originally ordered Plaintiff to pay the filing fee and Plaintiff has not responded, despite

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being notified of the requirement via the Court’s order specifically directing him to respond. (Doc.

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9).

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III.

Conclusion and Order

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Since Plaintiff has failed to respond to the Court’s orders on July 22, 2011, the Court

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HEREBY ORDERS: Plaintiff’s action is DISMISSED WITHOUT PREJUDICE for failure to obey

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court orders.

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IT IS SO ORDERED.

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Dated:
66h44d

September 7, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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