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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM THORNTON,

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Plaintiff,

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Case No. 1:11-cv-01136 JLT (PC)
ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

v.
SONNY PEREZ, et al.,

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Defendants.

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I.

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Plaintiff William Thornton (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On October 17, 2012, the Court

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issued an order directing Plaintiff to file a Third Amended Complaint or notify the Court of his

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willingness to proceed on those claims found to be cognizable in his Second Amended

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Complaint. (Doc. 19) In the order, the Court warned Plaintiff, “If Plaintiff fails to comply with

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this order, the action will be dismissed for failure to obey a court order.” Id. at 14. Despite the

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Court’s order and warning, Plaintiff has failed to respond.

Background

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On November 19, 2012, the Court ordered Plaintiff to show cause why the matter should

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not be dismissed for his failure to file to comply with the Court’s orders and to prosecute this

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case. (Doc. 20) Once again, Plaintiff did not respond despite that he was cautioned that is failure

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to do so would result in an order dismissing the case. Id. at 2.

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II.

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“District courts have inherent power to control their dockets,” and in exercising that

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power, a court may impose sanctions including dismissal of an action. Thompson v. Housing

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Authority of Los Angeles, 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 or failure to obey a court order, or

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failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995)

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(dismissal for failure to comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th

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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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

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failure to prosecute and to comply with local rules).

Discussion and Analysis

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In determining whether to dismiss an action for failure to prosecute, failure to obey a court

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order, or failure to comply with the Local Rules, the Court must consider several factors,

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including: “(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 sanctions.” Henderson,

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779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the

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defendants also weighs in favor of dismissal, since a presumption of injury arises from the

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occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The Court will not, and cannot, hold the case in abeyance because

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Plaintiff has lost interest in this litigation.

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Notably, the Court alerted Plaintiff of the consequences for failure to comply with the

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Local Rules and the Court’s orders. (Doc. 19 at 14; Doc. 20 at 2) Thus, Plaintiff had adequate

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warning his matter would be dismissed if he failed to comply with the Court’s order or its Local

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Rules. Moreover, no lesser sanction is feasible given the Court’s inability to communicate with

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Plaintiff.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The action is DISMISSED without prejudice; and

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2. The Clerk of the Court is directed to close the case.

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IT IS SO ORDERED.

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Dated:

December 10, 2012

/s/ Jennifer L. Thurston

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

9j7khijed

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