Tubach v. Holquin, et al.

Filing 10

ORDER DISMISSING CASE signed by District Judge Anthony W. Ishii on 9/27/2013. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISABEL TUBACH,

Case No. 1:12-cv-00872-AWI-SMS (PC)

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Plaintiff,
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v.

ORDER DISMISSING ACTION,
WITHOUT PREJUDICE, FOR
FAILURE TO PROSECUTE

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(ECF No. 9)

HOLQUIN, et al.,
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Defendants.
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Plaintiff Isabel Tubach (“Plaintiff”) is a prisoner in the custody of the California
Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the
Complaint in this action on May 29, 2012. (ECF No. 1.) In the Complaint, Plaintiff appears to

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allege that she is being sexually abused and harassed in violation of the Eighth Amendment,

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though she does not identify any specific constitutional right that she feels was violated. In

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addition, Plaintiff failed to state the dates of the occurrences of which she complains and merely

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stated many conclusions rather than detailed factual allegations.

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Thus, on June 3, 2013, an order issued requiring Plaintiff to submit a more definite
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statement of facts, within thirty (30) days, to enable the Court to screen the Complaint in
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compliance with 28 U.S.C. § 1915A. (ECF No. 8.) That same order indicated that Plaintiff’s

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failure to comply as directed may result in the dismissal of this action under Rule 41(b) of the

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Federal Rules of Civil Procedure without further notice. (Id.)

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Since Plaintiff did not respond, on September 6, 2013, the Court ordered her to show
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cause within fifteen days why this action should not be dismissed. (ECF No. 9.) Plaintiff was

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warned that this action would be dismissed if she failed to respond. (Id.) The fifteen-day

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deadline has expired and Plaintiff did not comply with or otherwise respond to the Court=s order.

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Failure to comply with a court order is grounds for sanctions up to and including dismissal of this

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action. Local Rule 110; Fed. R. Civ. P. 41(b).

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The Court has the inherent power to control its docket and may, in the exercise of that

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power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los
Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action,

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the Court must weigh A(1) the public=s interest in expeditious resolution of litigation; (2) the

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court=s need 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 sanctions.@ In

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re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir.

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2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). These factors are
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not conditions that must be met in order for a court to take action but rather guide a court in
deciding what to do. Id. (citation omitted).
Based on Plaintiff=s failure to comply with or otherwise respond to the above orders, the

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Court is left with no alternative but to dismiss the action for failure to prosecute. Id. This action

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can proceed no further without Plaintiff=s cooperation and compliance with the orders at issue.

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The action cannot simply remain idle and unprosecuted on the Court=s docket. Id.

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Accordingly, this action is HEREBY ORDERED DISMISSED, without prejudice, for
failure to prosecute.

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IT IS SO ORDERED.
Dated: September 27, 2013
SENIOR DISTRICT JUDGE
DEAC_Signature-END:

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0m8i788

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