Thornton v. Perez et al

Filing 21

ORDER DISMISSING CASE for Failure to Prosecute signed by Magistrate Judge Jennifer L. Thurston on 12/10/2012. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM THORNTON, 12 Plaintiff, 13 14 Case No. 1:11-cv-01136 JLT (PC) ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE v. SONNY PEREZ, et al., 15 Defendants. 16 17 I. 18 Plaintiff William Thornton (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On October 17, 2012, the Court 20 issued an order directing Plaintiff to file a Third Amended Complaint or notify the Court of his 21 willingness to proceed on those claims found to be cognizable in his Second Amended 22 Complaint. (Doc. 19) In the order, the Court warned Plaintiff, “If Plaintiff fails to comply with 23 this order, the action will be dismissed for failure to obey a court order.” Id. at 14. Despite the 24 Court’s order and warning, Plaintiff has failed to respond. Background 25 On November 19, 2012, the Court ordered Plaintiff to show cause why the matter should 26 not be dismissed for his failure to file to comply with the Court’s orders and to prosecute this 27 case. (Doc. 20) Once again, Plaintiff did not respond despite that he was cautioned that is failure 28 to do so would result in an order dismissing the case. Id. at 2. 1 1 II. 2 “District courts have inherent power to control their dockets,” and in exercising that 3 power, a court may impose sanctions including dismissal of an action. Thompson v. Housing 4 Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with 5 prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or 6 failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995) 7 (dismissal for failure to comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th 8 Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); 9 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 10 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 11 failure to prosecute and to comply with local rules). Discussion and Analysis 12 In determining whether to dismiss an action for failure to prosecute, failure to obey a court 13 order, or failure to comply with the Local Rules, the Court must consider several factors, 14 including: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 15 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 16 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Henderson, 17 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831. 18 In the case at hand, the public’s interest in expeditiously resolving this litigation and the 19 Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the 20 defendants also weighs in favor of dismissal, since a presumption of injury arises from the 21 occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 22 F.2d 522, 524 (9th Cir. 1976). The Court will not, and cannot, hold the case in abeyance because 23 Plaintiff has lost interest in this litigation. 24 Notably, the Court alerted Plaintiff of the consequences for failure to comply with the 25 Local Rules and the Court’s orders. (Doc. 19 at 14; Doc. 20 at 2) Thus, Plaintiff had adequate 26 warning his matter would be dismissed if he failed to comply with the Court’s order or its Local 27 Rules. Moreover, no lesser sanction is feasible given the Court’s inability to communicate with 28 Plaintiff. 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The action is DISMISSED without prejudice; and 3 2. The Clerk of the Court is directed to close the case. 4 5 6 IT IS SO ORDERED. 7 Dated: December 10, 2012 /s/ Jennifer L. Thurston 8 9 10 UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 9j7khijed 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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