Coston v. Clark et al

Filing 15

ORDER to SHOW CAUSE Why Action Should Not be Dismissed With Prejudice for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute, signed by Magistrate Judge Michael J. Seng on 5/15/15. Show Cause Response Due Within Fourteen Days.(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY M. COSTON,

CASE NO. 1: 14-cv-00148-MJS (PC)

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Plaintiff,

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ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM, FAILURE TO OBEY A COURT
ORDER, AND FAILURE TO PROSECUTE

Defendants.

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(ECF No. 14)

v.
J.K. YU, et al.,

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FOURTEEN (14) DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 8.) Plaintiff has
consented to Magistrate Judge jurisdiction. (ECF No. 13.)
The Court screened Plaintiff’s Complaint and dismissed it for failure to state a
claim but gave leave to amend. (ECF No. 7.) On March 31, 2015, Plaintiff’s First
Amended Complaint was dismissed for failure to state a claim, but he was given leave to
file a second amended complaint within thirty days. (ECF No. 14.) The thirty day
deadline has passed without Plaintiff either filing an amended pleading or seeking an
extension of time to do so.

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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with
these Rules or with any order of the Court may be grounds for imposition by the Court of
any and all sanctions . . . within the inherent power of the Court.” “District courts have
inherent power to control their dockets [and] . . . [i]n the exercise of that power, they may
impose sanctions including, where appropriate, default or dismissal.” Thompson v.
Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with
prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure
to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)
(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 126063 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a
complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure
to comply with local rule requiring pro se plaintiffs to keep court apprised of address);
Malone v. U.S. Postal Serv., 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to
comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424-25 (9th Cir.
1986) (dismissal for lack of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey
a court order, or failure to comply with local rules, the Court must consider several
factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the [C]ourt’s
need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits and (5) the availability of less drastic
alternatives.” Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423.
In the instant case, the public’s interest in expeditiously resolving this litigation
and the Court’s interest in managing its docket weigh in favor of dismissal. The third
factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a
presumption of injury arises from the occurrence of unreasonable delay in prosecuting
this action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth
factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed
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by the factors in favor of dismissal discussed herein. Finally, as for the availability of
lesser sanctions, at this stage in the proceedings there is little available which would
constitute a satisfactory lesser sanction while preserving scarce Court resources.
Plaintiff has not paid the filing fee for this action and is likely unable to pay, making
monetary sanctions of little use.
Accordingly, it is HEREBY ORDERED THAT:
1.

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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. 14.) and failure to

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Within fourteen (14) days of service of this Order, Plaintiff shall either show

prosecute, or file an amended complaint; and
2.

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If Plaintiff fails to show cause or file an amended complaint, the
undersigned shall dismiss this action, with prejudice, subject to the “three

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strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658

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F.3d 1090 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:

May 15, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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