Gillian, et al. v. Frauenheim, et al.

Filing 16

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. 15) Fourteen (14) Day Deadline signed by Magistrate Judge Michael J. Seng on 06/02/2015. (Yu, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN GILLIAN, et al.,

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Plaintiffs,

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v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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CASE NO. 1:15-cv-00037-MJS
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. 15)
FOURTEEN (14) DAY DEADLINE

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On November 14, 2014, Plaintiffs John Gillian, Mary Whitaker, James Plaisted,

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Alice Aaron, and Meg Wright, individually and on behalf of the estate of David Gillian,

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filed this civil rights action pursuant to 42 U.S.C. § 1983 in Fresno County California

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Superior Court. (ECF No. 1.) On January 7, 2015, Defendants California Department

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of Corrections and Rehabilitation (“CDCR”) and Scott Frauenheim, Warden of Pleasant

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Valley State Prison (“PVSP”), removed the case to federal court. 1 (ECF No. 1.) The

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parties have consented to Magistrate Judge jurisdiction. (ECF Nos. 5 & 10.)

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Defendants moved to dismiss this action pursuant to Federal Rules of Civil

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Procedure 8 and 12 for failure to put Defendant CDCR on notice of the claims against it,

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failure to state a claim upon which relief may be granted, failure to comply with the

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California Tort Claims Act (“CTCA”), and lack of standing to sue on behalf of a deceased

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Plaintiffs also sue twenty unnamed Defendant Does who they allege are agents or employees of CDCR.

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son and brother. (ECF No. 6.) On April 27, 2015, the Court granted in part and denied

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in part Defendants’ motion. (ECF No. 15.) Plaintiffs were ordered to file an amended

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complaint within thirty days, and were warned that the failure to do so would result in the

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dismissal of the action, with prejudice. (Id.) The thirty day deadline passed without

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Plaintiffs either filing an amended complaint or seeking an extension of time to do so.

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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, default or dismissal.” 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, there is little available which would

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constitute a satisfactory lesser sanction; Plaintiffs have to date failed to allege a claim

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under 42 U.S.C. § 1983 that would confer jurisdiction on the Court.

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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. 15) and failure to

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prosecute, or file an amended complaint, and

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2.

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

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IT IS SO ORDERED.
Dated:

June 2, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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