McNeal v. Cano et al

Filing 10

ORDER Dismissing Action for Failure to Follow Court Order and Failure to Prosecute, signed by Magistrate Judge Dennis L. Beck on 8/18/15. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE MCNEAL,

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Plaintiff,

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v.

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Case No. 1:14-cv-01767-DLB PC
ORDER DISMISSING ACTION FOR
FAILURE TO FOLLOW COURT ORDER
AND FAILURE TO PROSECUTE

CANO, et al.,

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Defendants.

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Plaintiff Vernon Wayne McNeal (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action on October 27, 2014. It was transferred to this Court on

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November 12, 2014.1
On April 7, 2015, the Court screened Plaintiff’s complaint and dismissed it with leave to

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amend. Plaintiff was ordered to file an amended complaint within thirty (30) days. Over thirty (30)

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days passed and Plaintiff failed to file an amended complaint or otherwise communicate with the

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Court.

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On July 6, 2015, the Court issued an order to show cause why this action should not be

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dismissed for failure to follow a Court order and failure to prosecute. Plaintiff was ordered to file a

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response, or an amended complaint, within twenty-one (21) days of the date of service. Over

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Plaintiff consented to the jurisdiction of the United States Magistrate Judge on December 11, 2014.

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twenty-one (21) days have passed and Plaintiff has not filed a response or otherwise contacted the

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Court.

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The Court has the inherent power to control its docket and may, in the exercise of that power,

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impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles

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County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action for failure

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to comply with a pretrial order, the Court must weigh: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability

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of less drastic sanctions. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d

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1217, 1226 (9th Cir. 2006) (quotation marks and citation omitted). These factors guide a court in

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deciding what to do and are not conditions that must be met in order for a court to take action. In re

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PPA, 460 F.3d at 1226 (citation omitted).

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“The public’s interest in expeditious resolution of litigation always favors dismissal.”

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citation and internal quotation marks

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omitted). Further, the Court’s need to manage its docket weighs in favor of dismissal, as “[i]t is

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incumbent upon the Court to manage its docket without being subject to routine noncompliance of

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litigants . . . .” Pagtalunan, 291 F.3d at 642 (citation and internal quotation marks omitted).

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This action has been pending since October 27, 2014, and Plaintiff has failed to file an

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amended complaint. As a result, there is no operative complaint. Plaintiff has been given numerous

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chances to do so, but has failed to comply with the Court’s order. The Court’s July 6, 2015, order

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also warned Plaintiff that dismissal would result if he failed to respond to the order.

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Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED WITHOUT
PREJUDICE for Plaintiff’s failure to follow the Court’s orders and failure to prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

August 18, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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