Pellum v. Fresno County Jail

Filing 10

ORDER DISMISSING Action (Strike) with Prejudice for Failure to Obey Court Orders and Failure to Prosecute; DISMISSAL COUNTS AS A STRIKE Pursuant to 28 U.S.C. 1915(g); Clerk to CLOSE CASE signed by Magistrate Judge Michael J. Seng on 1/2/2014. 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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JASON EVERETT PELLUM, SR.,

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Plaintiff,

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v.

Case No. 1:13-cv-01316-MJS (PC)
ORDER DISMISSING ACTION WITH
PREJUDICE FOR FAILURE TO OBEY
COURT ORDERS AND FAILURE TO
PROSECUTE

FRESNO COUNTY JAIL,
(ECF No. 9)

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Defendant.

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DISMISSAL COUNTS AS A STRIKE
PURSUANT TO 28 U.S.C. §1915(g)

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CLERK TO CLOSE CASE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. The complaint was dismissed for failure to state a

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claim, but Plaintiff was given leave to file an amended pleading provided he do so by not

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later than November 4, 2013. (ECF No. 7.) The November 4, 2013 deadline passed without

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Plaintiff either filing an amended pleading or seeking a further extension of time to do so.

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The Court ordered Plaintiff to either file an amended complaint or show cause by not

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later than December 30, 2013, why the action should not be dismissed. (ECF No. 9.) The

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December 30th deadline passed without Plaintiff responding further.

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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 and

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all sanctions . . . within the inherent power of the Court.” District courts have the inherent
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power to control their dockets and “in the exercise of that power, they may impose

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sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing

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Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice,

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based on a party’s failure to prosecute, failure to obey a court order, or failure to comply

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

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

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1992) (dismissal for failure to comply with an order requiring amendment of a complaint);

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with

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local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S.

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Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a

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court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack

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of prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey a

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court order, or failure to comply with local rules, the Court must consider several factors: (1)

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

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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 alternatives. Thompson, 782

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F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at

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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 and

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

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of prejudice to Defendant, also weighs in favor of dismissal, since a presumption of injury

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arises from the occurrence of unreasonable delay in prosecuting this action. Anderson v.

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Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring

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disposition of cases on their merits -- is greatly outweighed by the factors in favor of

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dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this stage

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in the proceedings there is little available which would constitute a satisfactory lesser

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sanction while preserving scarce Court resources. Plaintiff has not paid the filing fee for this
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action and is likely unable to pay, making monetary sanctions of little use.

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Plaintiff has not responded to the Court’s orders. (ECF Nos. 7 & 9.)

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Accordingly, it is HEREBY ORDERED THAT:

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This action is DISMISSED WITH PREJUDICE, said dismissal to count as a

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strike pursuant to 28 U.S.C. § 1915(g), Silva v. Di Vittorio 658 F.3d 1090 (9th

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Cir. 2011), and
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The Clerk of the Court shall terminate any and all pending motions and
CLOSE the case.

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IT IS SO ORDERED.

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Dated:

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January 2, 2014

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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Michael J. Seng

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