Sims v. Emmanuel

Filing 10

ORDER DISMISSING Action, Without Prejudice, for Failure to Comply With Court Orders and Failure to Prosecute, signed by Magistrate Judge Dennis L. Beck on 3/5/14. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT SIMS,

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Plaintiff,

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vs.
EMMANUEL,

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Defendant.

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1:13cv00537 DLB PC
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO COMPLY
WITH COURT ORDERS AND
FAILURE TO PROSECUTE

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Plaintiff Robert Sims (“Plaintiff”) is a civil detainee proceeding pro se and in forma

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pauperis in this civil rights action. Plaintiff filed this action on April 15, 2013.1

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On December 4, 2013, the Court screened Plaintiff’s complaint and found that it stated a
claim against Defendant Lynyamma Emmanuel for excessive force in violation of the Fourteenth
Amendment. Plaintiff was ordered to return service documents within thirty (30) days.

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Plaintiff failed to return the service documents and on January 22, 2014, the Court issued

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an Order to Show Cause why the action should not be dismissed for failure to follow a Court
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order and failure to prosecute. Plaintiff was ordered to file a response to the order within thirty
days. Plaintiff was also instructed that he could comply by submitting the service documents.

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On May 6, 2013, Plaintiff consented to the jurisdiction of the United States Magistrate Judge.
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Over thirty days have passed and Plaintiff has not filed a response or otherwise contacted
the Court.

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The Court has the inherent power to control its docket and may, in the exercise of that
power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los

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Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action
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for failure to comply with a pretrial order, the Court must weigh “(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;

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and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) Products

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

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

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

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Based on Plaintiff’s failure to comply with these particular Court orders, the Court is left

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with no alternative but to dismiss the action for failure to prosecute. Id. This action, which has

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been pending since April 2013, cannot proceed further without Plaintiff’s cooperation and

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compliance with the orders at issue, and the action cannot simply remain idle on the Court’s
docket, unprosecuted. Id. Moreover, Plaintiff was warned in both the order to return service

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documents and the Order to Show Cause that failing to comply with the orders may result in
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dismissal of the action.
Accordingly, this action is HEREBY DISMISSED, without prejudice, for Plaintiff’s

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failure to follow Court orders and failure to prosecute.

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IT IS SO ORDERED.
Dated:

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/s/ Dennis

March 5, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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