Solomon v. Castaneda et al
Filing
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ORDER DISMISSING Action With Prejudice for Failure to Obey a Court Order and Failure to Prosecute; Clerk to Close Case, signed by Magistrate Judge Michael J. Seng on 6/27/17. CASE CLOSED. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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VINCENT SOLOMON,
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Plaintiff,
v.
I. CASTANEDA, et al.,
Defendants.
CASE No. 1:15-cv-01801-MJS (PC)
ORDER DISMISSING ACTION WITH
PREJUDICE FOR FAILURE TO OBEY A
COURT ORDER AND FAILURE TO
PROSECUTE
(ECF No. 16)
CLERK TO CLOSE CASE
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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. He has consented to Magistrate
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Judge jurisdiction. (ECF No. 10.) No other parties have appeared in the action.
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Plaintiff initiated this action on November 30, 2015. (ECF No. 1.) On August 8,
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2016, the assigned District Judge screened Plaintiff’s amended complaint and concluded
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that it stated cognizable Eighth Amendment excessive force claims against Defendants
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Castaneda, Press, and Sanchez. Plaintiff’s other claims were dismissed for failure to
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state a cognizable claim – some with leave to amend and some without leave to amend.
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The Court also dismissed certain defendants without leave to amend. (ECF No. 16.) The
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complaint itself was dismissed and Plaintiff was granted thirty (30) days to file a second
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amended complaint. (Id.)
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Plaintiff proceeded to file four motions for extension of time to file a second
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amended complaint. (ECF Nos. 17, 19, 21, 24.) The motions were granted, but in
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granting the fourth motion, filed January 30, 2017 (ECF No. 24), the Court warned
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Plaintiff that further extensions of time were unlikely. (ECF No. 25.) Plaintiff was ordered
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to file an amended complaint but also was given the option of notifying the Court of his
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willingness to proceed only on the claims previously found cognizable. (Id.)
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Plaintiff then failed to timely file a second amended complaint, notify the Court of
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his willingness to proceed only on the cognizable claims or otherwise respond to the
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Court’s order. (Id.) Accordingly, on April 20, 2017, the Court issued an order to show
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cause for failure to obey a court order and failure to prosecute. (ECF No. 26.) Plaintiff
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then filed a fifth motion for extension of time on May 11, 2017. (ECF No. 27.) The Court
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denied the motion and ordered Plaintiff, within twenty-one days, to either file an
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amended complaint or advise the Court whether he wishes to proceed on the excessive
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force claim previously found cognizable. (ECF No. 28.) Plaintiff was advised that the
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failure to timely respond would result in dismissal of the action for failure to obey a court
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order and failure to prosecute. (Id.) The twenty-one day deadline passed without Plaintiff
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either filing an amended complaint, stating his willingness to proceed only on cognizable
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claims, or otherwise responding 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, with
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prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure
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to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)
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(dismissing for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 12602
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61 (9th Cir. 1992) (dismissing for failure to comply with an order requiring amendment of
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a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissing for
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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of
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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissing
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for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th
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Cir. 1986) (dismissing 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 1423-24; Malone, 833
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F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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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. With respect to 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 fee for this action and is likely unable to pay, making monetary sanctions
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of little use. Finally, the order to show cause warned Plaintiff that his failure to comply
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may result in dismissal, with prejudice. (ECF No. 26.) Thus, Plaintiff was on notice that
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his failure to communicate with the Court could result in dismissal of his complaint.
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Based on the foregoing, it is HEREBY ORDERED THAT:
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1.
The action is DISMISSED, with prejudice, for failure to comply with the
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Court’s orders (ECF Nos. 16, 28) and failure to prosecute; and
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2.
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The Clerk of Court is directed to terminate all pending motions and close
the case.
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IT IS SO ORDERED.
Dated:
June 27, 2017
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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