Marlett v. Harrington et al
Filing
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ORDER to SHOW CAUSE Why This Action Should Not Be Dismssed, Without Prejudice, for Failure to Obey a Court Order and Failure to Prosecute signed by Magistrate Judge Michael J. Seng on 12/1/2015. Show Cause Response due within fourteen (14) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEVEN SCOTT MARLETT,
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Plaintiff,
v.
CASE NO. 1:15-cv-01382-MJS (PC)
ORDER TO SHOW CAUSE
(ECF No. 5)
KELLY HARRINGTON, et al.,
FOURTEEN (14) DAY DEADLINE
Defendants.
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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. Plaintiff has consented to the
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undersigned’s jurisdiction. (ECF No. 7.) On November 4, 2015, Plaintiff’s complaint was
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screened and dismissed for failure to state a claim. Plaintiff was directed to file an
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amended complaint on or before November 15, 2015. That date has now passed, and
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Plaintiff has not responded to the Court’s order.
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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 based
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on a party’s failure to prosecute, failure to obey a court order, or failure to comply with
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local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
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1992) (dismissal for failure to comply with an order requiring amendment of a complaint);
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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply
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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.
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U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply
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with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424-25 (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.
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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 fees in this action and likely is unable to pay, making monetary sanctions
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of little use.
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Based on the foregoing, it is HEREBY ORDERED that Plaintiff shall show cause
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within fourteen (14) days why this action should not be dismissed, without prejudice, for
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failure to obey a court order and failure to prosecute.
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IT IS SO ORDERED.
Dated:
December 1, 2015
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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