Rhodes v. Fresno County, et al.

Filing 33

***VACATED PER 35 ORDER*** ORDER DISMISSING the Action for Failure to Prosecute the Action signed by Magistrate Judge Stanley A. Boone on 2/14/2017. CASE CLOSED.(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERCY LEE RHODES,

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Plaintiff,

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v.

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FRESNO COUNTY, et al.,

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Defendants.

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Case No.: 1:15-cv-01714-SAB (PC)
ORDER DISMISSING ACTION FOR FAILURE
TO PROSECUTE THE ACTION
[ECF Nos. 29, 31]

Plaintiff Percy Lee Rhodes is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of

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the United States Magistrate Judge on November 23, 2015. Local Rule 302.

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On December 8, 2016, the Court screening Plaintiff’s second amended complaint and ordered

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Plaintiff to either file a third amended complaint or notify the Court of his willingness to proceed only

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on the claims found to be cognizable, within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e).

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Plaintiff was warned that if he failed to comply, this action would be dismissed, without prejudice, for

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failure to obey a court order. Plaintiff failed to respond to the Court’s order.

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Therefore, on January 18, 2017, the Court ordered Plaintiff to show cause within twenty days

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as to why the action should not be dismissed. More than twenty days have passed, and Plaintiff has

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not complied with or otherwise responded to the order.

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The Court has the inherent power to control its docket and may, in the exercise of that power,

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impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles Cnty.,

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216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action, the Court must weigh

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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 cases

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on their merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA)

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Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted).

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These factors guide a court in deciding what to do, and are not conditions that must be met in order for

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a court to take action. Id. (citation omitted).

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Based on Plaintiff’s failure to comply with or otherwise respond to the Court’s order, the Court

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is left with no alternative but to dismiss the action for failure to prosecute. Id. This action can proceed

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no further without Plaintiff’s cooperation and compliance with the order at issue, and the action cannot

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simply remain idle on the Court’s docket, unprosecuted. Id. Accordingly, this action is HEREBY

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DISMISSED, without prejudice, for failure to obey a court order and failure to prosecute.

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IT IS SO ORDERED.

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Dated:

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February 14, 2017
UNITED STATES MAGISTRATE JUDGE

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