Simpson v. Fresno County Jail et al

Filing 11

ORDER dismissing action for failure to state a claim, failure to obey a court order and failure to prosecute and Order that this dismissal shall count as a strike pursuant to 28 U.S.C. 1915(g) signed by Magistrate Judge Barbara A. McAuliffe on 10/31/2016. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALVIN M. SIMPSON,

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Plaintiff,

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v.
FRESNO COUNTY JAIL, et al.,

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Defendants.

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1:15-cv-01464-BAM (PC)
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM, FAILURE
TO OBEY A COURT ORDER, AND
FAILURE TO PROSECUTE
(ECF Nos. 9, 10)
ORDER THAT THIS DISMISSAL SHALL
COUNT AS A STRIKE PURSUANT TO 28
U.S.C. § 1915(g)

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I.

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Plaintiff Calvin M. Simpson (“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 September 28, 2015. Plaintiff consented to the jurisdiction of a Magistrate Judge.

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(ECF No. 5).

Background

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On August 16, 2016, the Court dismissed Plaintiff’s complaint with leave to amend

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within thirty days after service. Plaintiff was expressly warned that if he failed to file an

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amended complaint in compliance with the Court’s order, this action would be dismissed, with

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prejudice, for failure to obey a court order and failure to state a claim. (ECF No. 9).

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Plaintiff failed to file an amended complaint and did not comply with or otherwise

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respond to the Court’s order. Accordingly, on October 7, 2016, the Court issued an order for

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Plaintiff to show cause, within fourteen (14) days of service, why this action should not be

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dismissed based on Plaintiff’s failure to comply with the Court’s August 16, 2016 order, and for

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his failure to state a claim and failure to prosecute. (ECF No. 10).

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Plaintiff’s response to the order to show cause was due on or before October 24, 2016.

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However, as of the date of this order, Plaintiff has neither complied with the Court’s previous

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orders, nor otherwise communicated with the Court.

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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. Housing 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,

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46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th

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Cir. 1987) (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: (1)

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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, the action has been pending for over a year, and Plaintiff’s amended complaint is

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overdue. Despite multiple attempts to communicate with Plaintiff, he has been non-responsive

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to the Court’s orders. The Court cannot effectively manage its docket if Plaintiff ceases litigating

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his case. Thus, both 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 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs

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against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza,

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291 F.3d 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 132-133; Henderson, 779 F.2d at 1424. The Court’s August 16, 2016 order

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expressly warned Plaintiff that his failure to comply with that order would result in dismissal of

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this action, with prejudice, for failure to state a claim and to obey a court order. (ECF No. 9, p.

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9). Plaintiff also was warned of the potential for dismissal by the Court’s October 7, 2016 order

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to show cause. (ECF No. 10). Thus, Plaintiff had adequate warning that dismissal could result

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from his noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court which

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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:

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1.

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Conclusion and Order

Pursuant to 28 U.S.C. § 1915A, this action is HEREBY DISMISSED, with

prejudice, for failure to state a claim;
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This action is also HEREBY DISMISSED for the failure to obey the Court’s

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August 16, 2016 order (ECF No. 9), and October 7, 2016 order (ECF No. 10) and for Plaintiff’s

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failure to prosecute this action;
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This dismissal SHALL count as a strike against Plaintiff under 28 U.S.C. §

1915(g); and
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The Clerk of the Court is directed to CLOSE this action.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 31, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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