Mendez v. Yates. et al.

Filing 10

ORDER DISMISSING Action, with Prejudice, for Failure to State a Claim, Failure to Obey Court Orders, and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 1/12/2017. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO E. MENDEZ, 12 13 14 Plaintiff, v. Case No. 1:15-cv-00781-BAM (PC) ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY COURT ORDERS, AND FAILURE TO PROSECUTE JAMES A. YATES, et al., (ECF Nos. 8, 9) 15 Defendants. 16 17 I. Background 18 Plaintiff Guillermo E. Mendez (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on 20 May 22, 2015 (ECF No. 1), and has consented to magistrate judge jurisdiction (ECF No. 5). 21 On November 2, 2016, the Court issued a screening order dismissing Plaintiff’s complaint 22 with leave to amend within thirty (30) days. (ECF No. 8.) The Court expressly warned Plaintiff 23 that the failure to comply with the Court’s order would result in this action being dismissed for 24 failure to obey a court order and for failure to state a claim. (Id., p. 6.) Plaintiff failed to file an 25 amended complaint or otherwise respond to the Court’s order. 26 On December 13, 2016, the Court issued an order directing Plaintiff to show cause in 27 writing within twenty (20) days why this action should not be dismissed for failure to state a 28 claim, failure to obey a court order, and failure to prosecute. (ECF No. 9.) The Court expressly 1 1 warned Plaintiff that the failure to comply with that order would result in this action being 2 dismissed, with prejudice, for failure to state a claim, failure to obey a court order, and failure to 3 prosecute. (Id., p. 2.) 4 Plaintiff’s response to the order to show cause was due on or before January 5, 2017. As 5 of the date of this order, Plaintiff has not complied with or otherwise responded to the order to 6 show cause. 7 II. Discussion 8 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 9 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 10 within the inherent power of the Court.” District courts have the inherent power to control their 11 dockets and “[i]n the exercise of that power they may impose sanctions including, where 12 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 13 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 14 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 15 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 16 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 17 amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th Cir. 1987) 18 (dismissal for failure to comply with court order). 19 In determining whether to dismiss an action, the Court must consider several factors: (1) 20 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 21 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 22 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 23 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 24 Here, the action has been pending for over a year, and Plaintiff’s amended complaint is 25 overdue. Despite multiple attempts to communicate with Plaintiff, he has been non-responsive to 26 the Court’s orders. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 27 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 28 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 2 1 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 2 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 3 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 4 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility 5 it is to move a case toward disposition on the merits but whose conduct impedes progress in that 6 direction,” which is the case here. In re Phenylpropanolamine (PPA) Products Liability 7 Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). Finally, the court’s warning to a party that failure to obey the court’s order will result in 8 9 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 10 Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s November 2, 2016 order 11 expressly warned Plaintiff that his failure to file an amended complaint would result in dismissal 12 of this action for failure to state a claim and to obey a court order. (ECF No. 15, p. 2). Plaintiff 13 also was warned of the potential for dismissal, with prejudice, by the Court’s December 13, 2016 14 order to show cause. (ECF No. 10). Thus, Plaintiff had adequate warning that dismissal could 15 result from his noncompliance. 16 Additionally, at this stage in the proceedings there is little available to the Court that 17 would constitute a satisfactory lesser sanction while protecting the Court from further 18 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 19 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 20 likely to have no effect given that Plaintiff has ceased litigating his case. 21 III. 22 Accordingly, it is HEREBY ORDERED that: 23 1. This action is DISMISSED, with prejudice, for failure to state a claim pursuant to 28 24 Conclusion and Order U.S.C. § 1915A; 25 /// 26 /// 27 /// 28 /// 3 1 2. This action is also DISMISSED, with prejudice, for failure to obey the Court’s 2 November 2, 2016 order (ECF No. 8) and December 13, 2016 order (ECF No. 9), and 3 for Plaintiff’s failure to prosecute this action. 4 This terminates the action in its entirety. 5 6 7 IT IS SO ORDERED. Dated: /s/ Barbara January 12, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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