Pulido v. Igbinosa, et al.

Filing 8

ORDER DISMISSING ACTION for Failure to Obey Court Order and Failure to State a Claim, signed by Magistrate Judge Dennis L. Beck on 10/31/2012. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAFAEL PULIDO,

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Plaintiff,
v.
F. IGBINOSA, et al.,

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Case No. 1:11-cv-01711-DLB PC
ORDER DISMISSING ACTION FOR
FAILURE TO OBEY COURT ORDER AND
FAILURE TO STATE A CLAIM
ECF Nos. 6, 7

Defendants.

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Plaintiff Rafael Pulido (“Plaintiff”) is a prisoner in the custody of the California Department

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of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma pauperis in

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this civil action pursuant to 42 U.S.C. § 1983. On October 14, 2011, Plaintiff filed his complaint.

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ECF No. 1. On July 30, 2012, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. §

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1915A(a) and § 1915(e)(2)(B) and found that it failed to state a claim. ECF No. 6. Plaintiff was

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provided the opportunity to file an amended complaint within thirty days. Plaintiff did not respond.

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On September 14, 2012, the Court issued an order for Plaintiff to show cause why this action should

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not be dismissed for failure to obey a court order and failure to state a claim. ECF No. 7. Plaintiff

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was provided twenty-one days in which to respond. As of the date of this order, no response was

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filed.

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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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(per curiam). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute

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

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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

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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of

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

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

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failure to lack of prosecution 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 court

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order, or failure to comply with local rules, the court must consider several 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 the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at

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1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 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 this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal This action

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has been pending for over one year. The third factor, risk of prejudice to defendants, also weighs in

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favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in

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

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public 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 obey the

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

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Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s

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order expressly stated: “If Plaintiff fails to show cause or otherwise timely respond, the Court will

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dismiss this action for failure to obey a court order and failure to state a claim.” Thus, Plaintiff had
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adequate warning that dismissal would result from his noncompliance with the Court’s order.

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Accordingly, it is HEREBY ORDERED that this action is dismissed with prejudiced for

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failure to obey the Court’s September 14, 2012 Order and for failure to state a claim upon which

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relief may be granted. The Clerk of the Court is directed to close this action.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

October 31, 2012

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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