Reid v. United States of America et al

Filing 27

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. 25 ), Fourteen (14) Day Deadline, signed by Magistrate Judge Michael J. Seng on 6/29/2015. Show Cause Response due by 7/17/2015.(Fahrney, E)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

GORDON C. REID,

11
12
13
14

Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

15

CASE NO. 1:14-cv-01163-LJO-MJS (PC)
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. 25)
FOURTEEN (14) DAY DEADLINE

16
17

Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil

18

rights and tort action brought pursuant to Bivens v. Six Unknown Named Agents, 403

19

U.S. 388 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680.

20

On November 24, 2014, the undersigned screened Plaintiff’s complaint and

21

dismissed it with leave to amend. (ECF No. 13.) Thereafter, Plaintiff filed objections to

22

the screening order. (ECF No. 16.) The District Judge assigned to the case construed

23

the objections as a motion for reconsideration and denied the motion on May 12, 2015.

24

(ECF No. 25.) Plaintiff was ordered to file an amended pleading within thirty days. The

25

thirty day deadline passed without Plaintiff either filing an amended pleading or seeking

26

an extension of time to do so.

27
28

Local Rule 110 provides that “failure of counsel or of a party to comply with these

1

Rules or with any order of the Court may be grounds for imposition by the Court of any

2

and all sanctions . . . within the inherent power of the Court.” District courts have the

3

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

4

impose sanctions including, where appropriate, default or dismissal.” Thompson v.

5

Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with

6

prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

(dismissal for lack of prosecution and failure to comply with local rules).

15

In determining whether to dismiss an action for lack of prosecution, failure to obey

16

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

17

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

18

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

19

favoring disposition of cases on their merits, and (5) the availability of less drastic

20

alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833

21

F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

22

In the instant case, the public’s interest in expeditiously resolving this litigation

23

and the Court’s interest in managing its docket weigh in favor of dismissal. The third

24

factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a

25

presumption of injury arises from the occurrence of unreasonable delay in prosecuting

26

this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor --

27

public policy favoring disposition of cases on their merits -- is greatly outweighed by the

28

factors in favor of dismissal discussed herein. Finally, as for the availability of lesser
2

1

sanctions, at this stage in the proceedings there is little available which would constitute

2

a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not

3

paid the filing fee for this action and is likely unable to pay, making monetary sanctions

4

of little use.

5
6

Accordingly, it is HEREBY ORDERED THAT:
1.

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

7

an amended complaint or show cause as to why this action should not be

8

dismissed with prejudice for failure to prosecute and failure to comply with

9

the Court’s order (ECF No. 25); and

10

2.

11

If Plaintiff fails to show cause or file an amended complaint, the
undersigned will recommend that the action be dismissed, with prejudice.

12
13
14

IT IS SO ORDERED.
Dated:

June 29, 2015

/s/

15

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
3