Cabrera v. Rios et al

Filing 9

ORDER DISMISSING Action For Failure to Comply With Court Order 7 , signed by Magistrate Judge Gerald B. Cohn on 10/14/11: Action is DISMISSED WITHOUT PREJUDICE. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERTO ESQUIVEL CABRERA,

1:11-cv-01382-GBC (PC)

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ORDER DISMISSING ACTION FOR
FAILURE TO COMPLY WITH COURT
ORDER

Plaintiff,
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v.
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(Doc. 7)
H. A. RIOS, JR., et al.,

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Defendants.
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I.

Factual and Procedural Background

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Roberto Esquivel Cabrera (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to Bivens v. Six Unknown Named Agents of Federal

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Bureau of Narcotics, 403 U.S. 388 (1971). On August 19, 2011, Plaintiff filed his original

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complaint. (Doc. 1). On September 6, 2011, the Court issued an order to show cause and ordered

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Plaintiff to respond within thirty days of service of the order or the action would be dismissed

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without prejudice. (Doc. 7). On October 3, 2011, mail sent by the Court was returned as

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undeliverable.

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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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A pro se plaintiff has an affirmative duty to keep the court and opposing parties apprised of

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his or her address. Local Rule 182(f). If the plaintiff moves and fails to file a notice of change of

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address, service of court orders at the plaintiff's prior address shall constitute effective notice. Id.

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If mail directed to the plaintiff is returned by the U.S. Postal Service as undeliverable, the court will

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not attempt to re-mail it. In determining whether to dismiss this action for failure to comply with

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

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

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of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 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 respond to the order to show cause. (Doc. 7). The Court’s effort was

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met with silence from Plaintiff, and the Court cannot effectively manage its docket if a party ceases

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to obey the orders of the court and litigate the case. Thus, both the first and second factors weigh

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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. Finally, because public policy

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

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

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on the merits but whose conduct impedes progress in that direction,” In re Phenylpropanolamine

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

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citations omitted), as is the case here.

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In summary, Plaintiff has failed to respond to the Court’s order to show cause. More than

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a month has passed since the Court originally ordered Plaintiff to respond to its order to show cause

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and Plaintiff has not responded, despite being notified of the requirement via the Court’s order

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specifically directing him to respond. (Doc. 7).

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III.

Conclusion and Order

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Since Plaintiff has failed to respond to the Court’s order filed on September 6, 2011, the

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

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to obey court order.

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IT IS SO ORDERED.

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Dated:
0jh02o

October 14, 2011
UNITED STATES MAGISTRATE JUDGE

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