Polonco v. Biter, et al.

Filing 18

ORDER DISMISSING Action for Failure to Comply with a Court Order signed by Magistrate Judge Stanley A. Boone on 4/4/2014. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RIGOBERTO POLONCO,

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Plaintiff,
v.
M. D. BITER, et al.,
Defendants.

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Case No.: 1:12-cv-00984-SAB (PC)
ORDER DISMISSING ACTION FOR FAILURE
TO COMPLY WITH A COURT ORDER
(ECF No. 15)

Plaintiff Rigoberto Polonco is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction

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of the United States Magistrate Judge on July 5, 2012. Local Rule 302.

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Plaintiff filed the action on June 19, 2012. On January 28, 2014, the Court screened Plaintiff’s

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second amended complaint, and dismissed Defendants Warden Biter and John Doe from the action for

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failure to state a cognizable claim, and found the action could proceed on Plaintiff’s excessive force

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against John Does 2 and 3. The Court granted Plaintiff fifteen days to file a status report notifying the

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Court how much time would be necessary to conduct discovery to ascertain the identifies of the two

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Doe Defendants. (ECF No. 15, at 5.)

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On February 11, 2014, the Court granted Plaintiff thirty additional days to respond to the

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Court’s January 28, 2014, order. More than thirty days have passed and Plaintiff has not complied

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with or otherwise responded to the Court’s order. As a result, there is no information before the Court
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as to identify of the two Doe Defendants to initiate service of process by the U.S. Marshal. Plaintiff

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was warned that dismissal would occur if he failed to obey the order. (ECF No. 15, at 6.)

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

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impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles

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County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action, the Court

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must weigh “(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 disposition

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of cases on their merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine

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(PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and

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citations omitted). These factors guide a court in deciding what to do, and are not conditions that must

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be met in order for a court to take action. Id. (citation omitted).

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Based on Plaintiff’s failure to comply with the Court’s order, the Court is left with no

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alternative but to dismiss the action for failure to prosecute. Id. This action can proceed no further

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without Plaintiff’s cooperation and compliance with the order at issue, and the action cannot simply

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remain idle on the Court’s docket, unprosecuted. Id. Accordingly, this action is HEREBY

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DISMISSED for failure to obey a court order and failure to prosecute.

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IT IS SO ORDERED.
Dated:

April 4, 2014
UNITED STATES MAGISTRATE JUDGE

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