Klingfus v. Davey

Filing 8

ORDER to SHOW CAUSE Why This Action Should Not be Dismissed Without Prejudice for Failure to Obey a Court Order and Failure to Prosecute, signed by Magistrate Judge Michael J. Seng on 3/25/16. Show Cause Response Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW KLINGFUS,

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Plaintiff,
v.
DAVE DAVEY, Warden,
Defendant.

CASE NO. 1:15-cv-01808- MJS (PC)
ORDER TO SHOW CAUSE WHY THIS
ACTION SHOULD NOT BE DISMISSED
WITHOUT PREJUDICE FOR FAILURE TO
OBEY A COURT ORDER AND FAILURE
TO PROSECUTE
(ECF NO. 7)
FOURTEEN (14) DAY DEADLINE

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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. 5.) On February 5, 2016, Plaintiff’s complaint was

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dismissed for failure to state a claim, and he was granted thirty days to file an amended

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complaint. (ECF Nos. 1, 7.) The time for filing an amended pleading has now passed,

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and 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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in writing within fourteen (14) days from the date of this order why this action should not

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

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IT IS SO ORDERED.
Dated:

March 25, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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