Wardene Kimm Cannon v. Metts et al

Filing 19

ORDER DISMISSING Action For Failure To Prosecute And Failure To State A Claim (ECF No. 18 ), Dismissal Is Subject To 28 U.S.C. § 1915(g), signed by Magistrate Judge Michael J. Seng on 9/23/2013. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WARDENE KIMM CANNON,

1:12-cv-0859-MJS (PC)

Plaintiff,

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ORDER DISMISSING ACTION FOR
FAILURE TO PROSECUTE AND
FAILURE TO STATE A CLAIM

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v.

(ECF No. 18)

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J. METTS, et al.,
DISMISSAL IS SUBJECT TO 28 U.S.C.
§ 1915(g)

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Defendants.
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Plaintiff Wardene Kimm Cannon (“Plaintiff”) is a state prisoner proceeding pro se
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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has
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consented to Magistrate Judge jurisdiction. (ECF No. 5.)
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On August 13, 2013, the Court ordered Plaintiff to show cause by August 30, 2013,
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why his case should not be dismissed for failure state a claim and failure to prosecute.
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(ECF No. 18.)

August 30, 2013, has passed without Plaintiff complying or otherwise

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responding 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 factors:

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(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 alternatives.

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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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 delay

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

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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. Finally, a court’s

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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 v. Bonzelet, 963 F.2d at 1262;

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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order expressly

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stated: “Failure to meet this deadline will result in dismissal of this action.” (ECF No. 18.)

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Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance

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with the Court’s order.

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Accordingly this action is HEREBY DISMISSED, with prejudice, based on Plaintiff’s

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failure to obey the Court’s August 13, 2013, order and failure to state a claim. (ECF No.

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18). This dismissal is subject to the "three-strikes" provision set forth in 28 U.S.C. §

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1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098-1099 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:

ci4d6

Septem ber 23, 2013

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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