Richards v. Renfro et al

Filing 12

ORDER DISMISSING Action for Failure to State a Claim, Failure to Obey Court Order, and Failure to Prosectue, signed by Magistrate Judge Michael J. Seng on 8/28/2014. CASE CLOSED (Strike). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES D. RICHARDS,

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Plaintiff,

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v.
CHARLES RENFRO, et al.,

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Defendants.

CASE NO. 1:13-cv-1933-MJS (PC)
ORDER DISMISING ACTION FOR
FAILURE TO STATE A CLAIM, FAILURE
TO OBEY COURT ORDER, AND
FAILURE TO PROSECUTE
(ECF No. 11)

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I.

PROCEDURAL HISTORY
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. Plaintiff has consented to Magistrate

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Judge jurisdiction. (ECF No. 5.) No other parties have appeared in the action.

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On June 24, 2014, Plaintiff’s complaint was dismissed for failure to state a claim,

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but he was given leave to file a first amended complaint within thirty days. (ECF No. 10.)

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The deadline passed without Plaintiff either filing an amended pleading or seeking an

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extension of time to do so.

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On August 5, 2014, the Court ordered Plaintiff to show cause why his case should
not be dismissed with prejudice for failure to obey a court order and failure to prosecute.

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(ECF No. 11.) The time for Plaintiff to respond to the order to show cause has passed

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and no response was filed.

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II.

LEGAL STANDARD
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 defendants/respondents; (4) the

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availability of less drastic alternatives; and (5) the public policy favoring disposition of

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cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.2002) (citing

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.1992)).

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III.

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ANALYSIS
“The public’s interest in expeditious resolution of litigation always favors

dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir.1999)).
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Plaintiff's complaint was dismissed for failure to state a claim. (ECF No. 10.) Plaintiff has

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failed to comply with the Court’s order that he file an amended pleading. He has not

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provided cause why his action should not be dismissed. (ECF No. 17.) In such

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circumstances, the Court cannot justify continuing to expend its scarce resources in this

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matter. Thus, both the first and second factors weigh in favor of dismissal.
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently

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prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991).

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However, “[u]nnecessary delay inherently increases the risk that witnesses’ memories

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will fade and evidence will become stale,” id. (citation omitted), and it is Plaintiff's failure

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to comply with Court orders and file an amended pleading that is causing delay.

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Therefore, the third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is

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little available to the Court which would constitute a satisfactory lesser sanction while

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protecting the Court from further unnecessary expenditure of its scarce resources.

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Plaintiff has not paid the filing fee for this action and is likely unable to pay, making

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monetary sanctions of little use, and given the early stage of these proceedings, the

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preclusion of evidence or witnesses is not available.

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Finally, because public policy favors disposition on the merits, this factor will
always weigh against dismissal. Id. at 643.

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Based on the foregoing factors, this action should be dismissed with prejudice

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based on Plaintiff's failure to state a claim, failure to obey a court order, and failure to

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prosecute.

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IV.

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CONCLUSION AND ORDER
Based on the foregoing, it is HEREBY ORDERED that:
1. This action is DISMISSED WITH PREJUDICE based on Plaintiff’s failure to state
a claim, failure to obey a court order, and failure to prosecute.
2. This dismissal shall count as a strike pursuant to 28 U.S.C. § 1915(g). Silva v.
Vittorio, 658 f.3d 1090, 1098-1099 (9th Cir. 2011); and
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3. Any and all pending motions shall be terminated and the Clerk of Court shall
CLOSE this case.

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IT IS SO ORDERED.
Dated:

August 28, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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