Benny C. Johnston v. Cooley et al

Filing 17

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 6/16/15. 14-Day Deadline.(Verduzco, M)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 BENNY G. JOHNSTON, JR., 11 Plaintiff, (ECF No. 16) v. COOLEY, et al., 14 15 FOURTEEN (14) DAY DEADLINE 16 17 18 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. 12 13 CASE NO. 1:14-cv-00979-MJS (PC) 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. 19 On October 31, 2014, the Court dismissed Plaintiff’s first amended complaint for 20 failure to state a claim but gave leave to amend. (ECF No. 12.) Plaintiff sought and 21 received two extensions of time, to and including June 4, 2015, in which to file his 22 second amended complaint. (ECF Nos. 14 &16.) The June 4, 2015 deadline passed 23 without Plaintiff either filing an amended pleading or seeking an extension of time to do 24 so. 25 Local Rule 110 provides that “failure of counsel or of a party to comply with these 26 Rules or with any order of the Court may be grounds for imposition by the Court of any 27 and all sanctions . . . within the inherent power of the Court.” District courts have the 28 1 inherent power to control their dockets and “in the exercise of that power, they may 2 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 3 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 4 prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure 5 to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 6 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 7 61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a 8 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure 9 to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 10 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 11 comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 12 (dismissal for lack of prosecution and failure to comply with local rules). 13 In determining whether to dismiss an action for lack of prosecution, failure to obey 14 a court order, or failure to comply with local rules, the Court must consider several 15 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 16 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 17 favoring disposition of cases on their merits, and (5) the availability of less drastic 18 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 19 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 20 In the instant case, the public’s interest in expeditiously resolving this litigation 21 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 22 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 23 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 24 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 25 public policy favoring disposition of cases on their merits -- is greatly outweighed by the 26 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 27 sanctions, at this stage in the proceedings there is little available which would constitute 28 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 2 1 paid the filing fee for this action and is likely unable to pay, making monetary sanctions 2 of little use. 3 4 Accordingly, it is HEREBY ORDERED THAT: 1. Within fourteen (14) days of service of this Order, Plaintiff shall either file 5 an amended complaint or show cause as to why this action should not be 6 dismissed with prejudice for failure to state a claim, failure to prosecute, 7 and failure to comply with the Court’s order (ECF No. 16); and 8 2. If Plaintiff fails to show cause or file an amended complaint, the action will be dismissed, with prejudice, subject to the “three strikes” provision set 9 10 forth in 28 U.S.C. § 1915(g). 11 12 13 IT IS SO ORDERED. Dated: June 16, 2015 /s/ 14 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?