Calloway v. Biter et al

Filing 40

ORDER Overruling Objections to Order to Show Cause, and Dismissing Action for Failure to State a Cognizable Claim and Failure to Obey a Court Order; ORDER That Dismissal Count as a Strike Pursuant to 28 U.S.C. §1915(g), signed by Magistrate Judge Stanley A. Boone on 2/16/17. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,
Plaintiff,

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

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Case No.: 1:13-cv-00747-SAB (PC)
ORDER OVERRULING OBJECTIONS TO
ORDER TO SHOW CAUSE, AND DISMISSING
ACTION FOR FAILURE TO STATE A
COGNIZABLE CLAIM AND FAILURE TO OBEY
A COURT ORDER
ORDER THAT DISMISSAL COUNT AS A
STRIKE PURSUANT TO 28 U.S.C. §1915(g)

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I.

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INTRODUCTION

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Plaintiff Jamisi Jermaine Calloway is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a United States

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Magistrate Judge. (ECF No. 8.)

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On November 7, 2016, the Court screened and dismissed Plaintiff’s third amended complaint

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for failure to state a claim upon which relief could be granted. (ECF No. 35.) Plaintiff was directed to

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file a fourth amended complaint within thirty days from the date of service of that order. (Id. at 13)

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On December 7, 2016, Plaintiff filed his third motion for the appointment of counsel. (ECF

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No. 36.) That motion was denied, and the Court reminded Plaintiff that his most recent amended
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complaint was dismissed for the failure to state any claim upon which relief could be granted, with

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leave to amend. (Id. at 2.)

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Plaintiff’s fourth amended complaint was due on or before December 12, 2016. On February 2,

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2017, the Court issued an order to show cause, noting that Plaintiff’s fourth amended complaint had

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not been filed and he had not communicated with the Court since his December 7, 2016 motion for the

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appointment of counsel. The Court ordered Plaintiff to either show cause in writing why this action

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should not be dismissed, or file his overdue amended complaint. (ECF No. 38.)

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Currently before the Court is Plaintiff’s objection to the order to show cause, filed February 13,
2017. (ECF No. 39.)

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II.

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OBJECTIONS

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Plaintiff states in his objections that it would be a waste of time to file a fourth amended

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complaint because he has nothing further to add to his allegations, and because he believes he has

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sufficiently stated a claim. Plaintiff argues that the Court has not shown leniency and he feels it has

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threatened dismissal rather than exercising its discretion to appoint counsel. Plaintiff further argues

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that the Court should reconsider appointing counsel to assist him with amending his claims.

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Plaintiff has shown no grounds for the Court to reconsider its December 8, 2016 order denying

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his third request for the appointment of counsel. (ECF No. 37.) As Plaintiff has been previously and

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repeatedly informed, he does not have a constitutional right to appointed counsel in this action, Rand

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent

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Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). Without a reasonable method of

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securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and

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exceptional cases.

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The Court reviewed and carefully considered the record, as well as Plaintiff’s assertions

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regarding his lack of legal knowledge and lack of a high school diploma. The legal issues in this case

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are not complex, however, and Plaintiff can adequately articulate his claims. In fact, the Court noted

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that Plaintiff had stated a claim in prior pleadings in this matter, although his most recent amended
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complaint was dismissed for the failure to state a cognizable claim. (ECF No. 37, p. 2.) Thus, he was

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granted leave to amend, which he now declines.1
The Court properly determined that the exceptional circumstances that would warrant a request

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for voluntary assistance of counsel do not exist in this case. See Rand, 113 F.3d at 1525. Plaintiff has

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not shown that the Court committed any error in denying his prior request for counsel, and therefore

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his motion to reconsider the denial of the appointment of counsel, is denied.

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III.

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DISMISSAL OF ACTION

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Plaintiff’s objections do not show good cause for his failure to comply with the Court’s

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previous orders, nor has he filed his overdue amended complaint. He further indicates that he does not

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intend to file any further amended complaint and instead stands on his Third Amended Complaint.
Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with any

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order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the

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inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n

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

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Thompson v. 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, or failure to

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comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal

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for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service,

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833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to comply with court order).
In determining whether to dismiss an action, the Court must consider several factors: (1) the

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public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3)

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Although Plaintiff does not have a legal education, he has significant experience litigating matters in pro per,
including a case which he litigated through trial in this district. See Calloway v. Veal, et al., Case No. 1:08-cv01896-LJO-GSA (E.D. Cal.) (judgment entered on February 3, 2017, in favor of Defendants, following a jury
trial at which Plaintiff represented himself). See also Calloway v. Scribner, et al., Case No. 1:11-cv-00803-DLB
(E.D. Cal.) (Plaintiff’s pro se complaint found to state a claim, and action later dismissed on statute of
limitations grounds); Calloway v. Kelley, et al., Case No. 1:11-cv-01090-LJO-SAB (E.D. Cal.) (Plaintiff
proceeded pro se in action through summary judgment, which was granted in favor of Defendants, and
judgment entered on October 30, 2015).

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the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423

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(9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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Here, the action has been pending for over three years, Plaintiff’s fourth amended complaint is

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more than two months overdue, and he has indicated he does not intend to file that overdue complaint.

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For the reasons explained in the Court’s November 7, 2016 screening order, Plaintiff’s third amended

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complaint was dismissed for the failure to state a claim upon which relief could be granted. (ECF No.

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35.) Thus, this case does not currently proceed on any viable pleading, and Plaintiff has failed to

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comply with the order requiring him to file another complaint. (Id. at 13.) The Court cannot effectively

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manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and

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second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against

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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639,

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643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility it is to

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move a case toward disposition on the merits but whose conduct impedes progress in that direction,”

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which is the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217,

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1228 (9th Cir. 2006) (citation omitted).

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Finally, the court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s November 7, 2016 screening

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order, (ECF No. 35, at p. 13), and its February 1, 2017 order to show cause (ECF No. 38, at p. 2.),

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each expressly warned Plaintiff that his failure to file a fourth amended complaint would result in

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dismissal of this action for failure to state a claim and to obey a court order. Thus, Plaintiff had

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adequate warning that dismissal could result from his noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court that would
constitute a satisfactory lesser sanction while protecting the Court from further unnecessary
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expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, making

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monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to have no effect

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given that Plaintiff has ceased litigating his case.

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IV.

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CONCLUSION

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Accordingly, the Court HEREBY ORDERS that:

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1. This action be DISMISSED, with prejudice, for failure to state a claim under 28 U.S.C. §
1915A;

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2. This action be DISMISSED, with prejudice, for failure to obey the Court’s November 7,

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2016 order (ECF No. 35) and February 1, 2017 order (ECF No. 38), and for Plaintiff’s

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failure to prosecute this action; and
3. This dismissal count shall constitute as a strike pursuant to 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.

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Dated:

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February 16, 2017
UNITED STATES MAGISTRATE JUDGE

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