Kabede v. Pleasant Valley State Prison Warden, et al.

Filing 39

ORDER DISMISSING ACTION, with Prejudice, for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 09/11/2017. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WONDIYRAD KABEDE,

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Plaintiff,

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v.

Case No. 1:15-cv-00635-BAM (PC)
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM, FAILURE TO OBEY A COURT
ORDER, AND FAILURE TO PROSECUTE

MULE CREEK PRISON WARDEN, et al.,
(ECF Nos. 37, 38)

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Defendants.

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Plaintiff Wondiyrad Kabede (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action on August 13, 2013, in the Northern District of California. On April 24, 2015, the action

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was transferred to this Court. (ECF No. 13.) Plaintiff has consented to magistrate judge

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jurisdiction. (ECF No. 19.)

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I.

Background

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On May 3, 2017, the Court issued a screening order dismissing Plaintiff’s second

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amended complaint with leave to amend within thirty (30) days. (ECF No. 34.) The Court

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expressly warned Plaintiff that the failure to file an amended complaint in compliance with the

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Court’s order would result in this action being dismissed, with prejudice, for failure to state a

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claim and failure to obey a court order. (Id. at 7.) Plaintiff failed to file an amended complaint or

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otherwise respond to the Court’s order. Therefore, on June 12, 2017, the Court issued an order to
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show cause why this action should not be dismissed based on Plaintiff’s failure to comply with

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the Court’s May 3, 2017 order, for failure to state a claim, and for failure to prosecute. (ECF No.

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35.)

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On June 26, 2017, Plaintiff filed a motion requesting a stay of proceedings or the

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appointment of counsel due to recent medical issues. (ECF No. 36.) The Court denied Plaintiff’s

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motion without prejudice, but found it appropriate to discharge the order to show cause and to

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grant Plaintiff thirty (30) days from June 30, 2017, to file an amended complaint. (ECF No. 37.)

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Plaintiff was warned that if he failed to file an amended complaint in compliance with the Court’s

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order, the Court would dismiss this action, with prejudice, for failure to state a claim and failure

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to obey a court order. (Id. at 3.) Plaintiff did not comply with the Court’s order.
On August 11, 2017, the Court issued a second order directing Plaintiff to show cause in

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writing within fourteen (14) days why this action should not be dismissed, with prejudice, for

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failure to state a claim, failure to obey a court order, and failure to prosecute. (ECF No. 38.) The

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Court expressly warned Plaintiff that the failure to comply with the order would result in this

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action being dismissed, with prejudice, for failure to state a claim, failure to obey a court order,

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and failure to prosecute. (Id. at 2.)

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Plaintiff’s response to the order to show cause was due on or before August 28, 2017. As

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of the date of this order, Plaintiff has not complied with or otherwise responded to the order to

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show cause.

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II.

Discussion

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,
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963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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Here, Plaintiff’s amended complaint is overdue. Despite multiple attempts to

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communicate with Plaintiff, he has been non-responsive to the Court’s orders. The Court cannot

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effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both

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the first and second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against

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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d

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639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products

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Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).

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Finally, the court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s May 3, 2017 order expressly

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warned Plaintiff that his failure to file an amended complaint would result in dismissal of this

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action, with prejudice, for failure to state a claim and failure to obey a court order. (ECF No. 34 at

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7.) Plaintiff also was warned of the potential for dismissal, with prejudice, by the Court’s June

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12, 2017 order to show cause, June 30, 2017 order, and August 11, 2017 order to show cause.

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(ECF Nos. 35 at 2; 37 at 3; 38 at 2.) Thus, Plaintiff had adequate warning that dismissal could
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result from his noncompliance.
Additionally, at this stage in the proceedings there is little available to the Court that

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating his case.

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III.

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Accordingly, it is HEREBY ORDERED that this action is DISMISSED, with prejudice,

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Conclusion and Order

for failure to state a claim, failure to obey the Court’s orders, and failure to prosecute this action.
This order terminates the action in its entirety.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 11, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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