Warner v. Cate et al

Filing 145

ORDER to SHOW CAUSE Why Action should not be Dismissed with Prejudice for Failure to Obey a Court Order; Show Cause Response due in Fourteen (14) Days signed by Magistrate Judge Michael J. Seng on 12/16/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,

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Plaintiff,

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v.
M. CATE, et al.,

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Defendants.

CASE No. 1:12-cv-01146-MJS (PC)
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED WITH
PREJUDICE FOR FAILURE TO OBEY A
COURT ORDER
FOURTEEN (14) DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s
first amended complaint against Defendants Walker, Davis, Prokop1, Spralding, and
Fellows for failure to protect in violation the Eighth Amendment to the United States
Constitution.

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On July 11, 2016, the Court issued a Trial Scheduling Order setting a telephonic
trial confirmation conference for February 2, 2017, and a jury trial for March 21, 2017.
(ECF No. 113.) On December 14, 2016, a minute order issued resetting the jury trial for
March 29, 2017, but leaving all other dates and deadlines the same. (ECF No. 144.)

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Pursuant to the July 11, 2016 Trial Scheduling Order, Plaintiff’s motions for the
attendance of witnesses and pretrial statement were due December 8, 2016. On

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Formerly named D. McGaha.

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December 5, 2016, Plaintiff filed a motion for the appointment of expert witnesses (ECF

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No. 139). However to date, no pretrial statement has been filed.

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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.” In addition, Federal Rule of

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Civil Procedure 16(f) authorizes the dismissal of an action for a party’s failure to obey a

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scheduling or pretrial order

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District courts have the inherent power to control their dockets and “in the

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exercise of that power, they may impose sanctions including, where appropriate . . .

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dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute,

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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);

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to

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comply with an order requiring amendment of a complaint); Carey v. King, 856 F.2d

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1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro
se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d
128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v.
Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and
failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey
a court order, or failure to comply with local rules, the Court must consider several
factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need
to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy
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, 833
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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 public’s interest in expeditiously resolving this litigation

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and the Court’s interest in managing its docket weigh in favor of dismissal. The third

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factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting

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this 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

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factors in favor of dismissal discussed herein. Finally, as for the availability of lesser

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sanctions, at this stage in the proceedings there is little available which would constitute

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a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not

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paid the filing fee for this action and is likely unable to pay, making monetary sanctions

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of little use.

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Accordingly, it is HEREBY ORDERED THAT:

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Within fourteen (14) days of service of this Order, Plaintiff shall either file

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his pretrial statement or show cause why this action should not be

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dismissed, with prejudice, for failure to obey a Court order and failure to

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prosecute.

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2.

Failure to comply with this order will result in dismissal of this action.

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IT IS SO ORDERED.
Dated:

December 16, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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