Lopez v. Shiesha et al

Filing 24

ORDER DISMISSING Plaintiff's Complaint for Failure to Comply With a Court Order 23 , signed by Magistrate Judge Michael J. Seng on 10/21/13: Clerk Shall Close the Case. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLAY EDWARD LOPEZ,

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Plaintiff,

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v.
S. SHIESHA, et al.,
Defendants.

CASE No. 1:12-cv-00076-MJS
ORDER
DISMISSING
PLAINTIFF’S
COMPLAINT FOR FAILURE TO COMPLY
WITH A COURT ORDER
(ECF No. 23)
CLERK SHALL CLOSE THE CASE

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Plaintiff Clay Edward Lopez, a former state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 17,

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2012. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 5.)

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On March 28, 2013, the Court issued an order dismissing certain claims and

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Defendants with prejudice and directing the Clerk of the Court to send Plaintiff service

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documents necessary to proceed on Plaintiff’s remaining cognizable claims. (ECF No.

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22.) Plaintiff was instructed to complete and return the service documents within thirty

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days. (Id.) The April 28, 2013 deadline passed without Plaintiff submitting the service

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documents or requesting an extension of time to do so.

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On September 18, 2013, the Court ordered Plaintiff to file the service documents

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by October 7, 2013. (ECF No. 23.) In the alternative, Plaintiff was to show cause as to

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why his case should not be dismissed for failure to comply with a Court Order and failure
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to prosecute. (Id.) The October 7, 2013 deadline has passed and Plaintiff has not

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complied with or otherwise responded to the Court’s Order.

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Local Rule 110 provides that “failure of counsel or of a party to comply with these

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Rules or with any order of the Court may be grounds for imposition by the Court of any

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

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inherent power to control their dockets and “in the exercise of that power, they may

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impose sanctions including, where appropriate . . . dismissal [of a case].” Thompson v.

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Housing Auth., 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, failure to obey a court order,

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

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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

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amendment of a 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

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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

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(dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey

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a court order, or failure to comply with local rules, the Court must consider several

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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need

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to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone,

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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

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resolving this litigation and the Court’s interest in managing its docket weigh in favor of

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dismissal.

The third factor, risk of prejudice to defendants, also weighs in favor of
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dismissal, since a presumption of injury arises from the occurrence of unreasonable

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delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

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The fourth factor - public policy favoring disposition of cases on their merits - is greatly

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outweighed by the factors in favor of dismissal discussed herein.

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warning to a party that his failure to obey the court’s order will result in dismissal satisfies

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the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at

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132-33; Henderson, 779 F.2d at 1424. The Court’s Order expressly warned Plaintiff that

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failure to respond would result in dismissal of this action for failure to obey a court order

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and failure to prosecute.

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Finally, a court’s

(ECF No. 23.) Thus, Plaintiff had adequate warning that

dismissal would result from his noncompliance with the Court’s Order.

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Accordingly, the Court hereby ORDERS that this action be dismissed, without

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prejudice, for failure to comply with the Court’s September 18, 2013 Order. (ECF No.

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23.)

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IT IS SO ORDERED.

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Dated:

October 21, 2013

/s/

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UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

ci4d6

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