Diaz v. Sherman et al

Filing 23

ORDER to SHOW CAUSE Why Action Should Not be Dismissed with Prejudice for Failure to Obey a Court Order and Failure to Prosecute re 22 , signed by Magistrate Judge Michael J. Seng on 10/30/14. Fourteen-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIGUEL DIAZ,

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CASE NO. 1:13-cv-1627-LJO-MJS (PC)
Plaintiff,

v.
STU SHERMAN, et al.,
Defendants.

ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED WITH
PREJUDICE FOR FAILURE TO OBEY A
COURT ORDER AND FAILURE TO
PROSECUTE
(ECF No. 22)
FOURTEEN (14) DAY DEADLINE

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. On January 30, 2014, Plaintiff’s

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complaint was dismissed for failure to state a claim, but he was given leave to file a first

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amended complaint. (ECF No. 10.) Plaintiff sought and was granted two extensions of

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time to file an amended complaint. (ECF Nos. 13, 14, 15, 16.) The extended deadline

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passed without Plaintiff either filing an amended pleading or seeking an extension of

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time to do so, and the Court ordered Plaintiff to show cause why the action should not be

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dismissed. (ECF No. 17.) Plaintiff did not respond and, on July 30, 2014, the

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undersigned issued findings and recommendation to dismiss the action for failure to

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obey a court order and failure to prosecute. (ECF No. 18.)

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On August 6, 2014, Plaintiff responded to the order to show cause and requested

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an extension of time. (ECF No. 19.) The Court discharged the order to show cause,

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vacated the findings and recommendations, and granted Plaintiff an extension of time to

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file an amended complaint. Plaintiff subsequently sought a further extension of time,

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which was granted. (ECF Nos. 21 & 22.) However, that deadline has passed without

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Plaintiff either filing an amended complaint or seeking a further extension of time.

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Plaintiff has had nearly nine months to file an amended complaint, but has not done so.

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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.” District courts have the

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inherent power to control their dockets and “in the exercise of that power, they may

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

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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, failure to obey a court order, or failure

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

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

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61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

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

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to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

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comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

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(dismissal for lack 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

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a court order, or failure to comply with local rules, the Court must consider several

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factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need

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to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy

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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.
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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Plaintiff has not responded to the Court’s order.

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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 show

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cause as to why this action should not be dismissed with prejudice for

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failure to comply with the Court’s order (ECF No. 22) and failure to

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prosecute, or file an amended complaint, and

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2.

If Plaintiff fails to show cause or file an amended complaint, the

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undersigned shall recommend this action be dismissed, with prejudice,

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subject to the “three strikes” provision set forth in 28 U.S.C. § 1915(g).

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Silva v. Di Vittorio, 658 F.3d 1090 (9th Cir. 2011).

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IT IS SO ORDERED.
Dated:

October 30, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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