Anderson v. Krpan et al

Filing 11

ORDER to SHOW CAUSE Why Action Should Not Be Dismissed With Prejudice for Failure to Obey a Court Order and Failure to Prosecute 10 , signed by Magistrate Judge Michael J. Seng on 12/10/14: Fourteen (14) Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAWN ANDERSON,

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Plaintiff,

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v.
CHRIS KRPAN, et al.,

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Defendants.

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CASE NO. 1:14-cv-1380-AWI-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. 10)
FOURTEEN (14) DAY DEADLINE

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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. On September 16, 2014, Plaintiff’s

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complaint was dismissed for failure to state a claim, but he was given leave to amend.

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(ECF No. 5.) Plaintiff filed a first amended complaint on October 3, 2014. (ECF No. 9.)

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On October 27, 2014, the Court struck Plaintiff’s first amended complaint on the ground

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it was unsigned. (ECF No. 10.) The Court also concluded that the first amended

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complaint failed to state a cognizable claim. (Id.)

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amended, signed complaint within thirty days. (Id.) The thirty day deadline has passed

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without Plaintiff either filing an amended pleading or seeking an extension of time to do

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so.

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Plaintiff was ordered to file an

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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 the defendants, (4) the public policy

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

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

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

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

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

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

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

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

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public policy favoring disposition of cases on their merits – is greatly outweighed by the
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factors in favor of dismissal discussed herein. Finally, as for the availability of lesser

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

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

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

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of little use.

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Accordingly, it is HEREBY ORDERED THAT:
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Within fourteen (14) days of service of this Order, Plaintiff shall either show

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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. 10) and failure to

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prosecute, or file an amended complaint, and
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If Plaintiff fails to show cause or file an amended complaint, the

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undersigned will recommend that the action be dismissed with prejudice,

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subject to the “three strikes” provision set forth in 28 U.S.C. § 1915(g).

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Silva v. Di Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).

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IT IS SO ORDERED.
Dated:

December 10, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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