Cruz v. Espinosa, et al.

Filing 7

ORDER DISMISSING Action For Failure To Obey A Court Order (ECF No. 6 ), signed by Magistrate Judge Barbara A. McAuliffe on 12/9/2014. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY CRUZ,

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Plaintiff,
v.
M. ESPINOSA, et al.,
Defendants.

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1:13-cv-01762-BAM (PC)
ORDER DISMISSING ACTION FOR
FAILURE TO OBEY A COURT ORDER
(ECF No. 6)

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Plaintiff Larry Cruz (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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November 1, 2013. Plaintiff consented to the jurisdiction of the Magistrate Judge. (ECF No. 5.)

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On October 28, 2014, the Court found that Plaintiff’s complaint stated a cognizable claim

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for violation of the Eighth Amendment against Defendants Dunn, Hiracheta, Silva and Espinosa

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in their individual capacities, but failed to state any other cognizable claims. The Court ordered

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Plaintiff, within thirty (30) days after service, to (1) either file a first amended complaint; or (2)

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notify the Court that he did not wish to file an amended complaint and was willing to proceed

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only on the cognizable claim. More than thirty days have passed and Plaintiff has not complied

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with or otherwise responded to the Court’s order.

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” 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 an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran,

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46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th

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Cir. 1987) (dismissal for failure to comply with court order).

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In determining whether to dismiss an action, 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 of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988).

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The Court finds that the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. This action has been

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pending since November 2013. Plaintiff has made no attempt to contact the Court or otherwise

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comply with the Court’s October 2014 order. The Court cannot hold this case in abeyance

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awaiting such compliance by Plaintiff. The third factor, risk of prejudice to defendants, also

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weighs in favor of dismissal, since a presumption of injury arises from the occurrence of

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unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th

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Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their merits -- is

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greatly outweighed by the factors in favor of dismissal discussed herein. Finally, the court’s

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warning to a party that failure to obey the court’s order will result in dismissal satisfies the

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“considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-

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133; Henderson, 779 F.2d at 1424. The Court’s order issued on October 28, 2014, expressly
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stated “If Plaintiff fails to comply with this order, this action will be dismissed, without

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prejudice, for failure to obey a court order.” (ECF No. 6, p. 9.) Thus, Plaintiff had adequate

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warning that dismissal could result from his noncompliance with the Court’s order.

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For the reasons stated above, this action is DISMISSED based on Plaintiff’s failure to
obey the Court’s order of October 28, 2014.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 9, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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