Simonson v. Singh et al

Filing 17

ORDER to SHOW CAUSE Why Action Should Not Be Dismissed With Prejudice for Failure to Obey a Court Order and Failure to Prosecute signed by Magistrate Judge Michael J. Seng on 9/14/2016. Show Cause Response due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CRAIG SIMONSON, 11 12 13 14 CASE NO. 1:16-cv-00126-LJO-MJS (PC) Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED WITH PREJUDICE FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE Defendants. (ECF No. 15) v. T. SINGH, et al., 15 FOURTEEN (14) DAY DEADLINE 16 17 18 Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights 19 action brought pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on January 27, 20 2016. (ECF No. 1.) 21 On March 25, 2016, the Court dismissed Plaintiff’s first civil rights complaint and 22 granted Plaintiff thirty days to file an amended complaint or a notice of voluntary 23 dismissal. (ECF No. 9.) On April 4, 2016, Plaintiff filed his first amended complaint. (ECF 24 No. 10.) On July 26, 2016, the Court screened Plaintiff’s first amended complaint and 25 found it to state a cognizable Eighth Amendment excessive force claim against 26 Defendant T. Singh. (ECF No. 15.) The Court directed Plaintiff to either file a second 27 amended complaint or a notice of willingness to proceed only on his cognizable claim 28 1 within thirty days. Id. The thirty days has passed and Plaintiff has done neither, nor has 2 he filed a request for an extension of time. 3 Local Rule 110 provides that “failure of counsel or of a party to comply with these 4 Rules or with any order of the Court may be grounds for imposition by the Court of any 5 and all sanctions . . . within the inherent power of the Court.” District courts have the 6 inherent power to control their dockets and “in the exercise of that power, they may 7 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 8 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 9 prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure 10 to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 11 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 12 61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a 13 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure 14 to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 15 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 16 comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 17 (dismissal for lack of prosecution and failure to comply with local rules). 18 In determining whether to dismiss an action for lack of prosecution, failure to obey 19 a court order, or failure to comply with local rules, the Court must consider several 20 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 21 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 22 favoring disposition of cases on their merits, and (5) the availability of less drastic 23 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 24 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 25 In the instant case, the public’s interest in expeditiously resolving this litigation 26 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 27 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 28 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 2 1 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 2 public policy favoring disposition of cases on their merits -- is greatly outweighed by the 3 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 4 sanctions, at this stage in the proceedings there is little available which would constitute 5 a satisfactory lesser sanction while preserving scarce Court resources. As Plaintiff is 6 proceeding in forma pauperis, Plaintiff has not paid the filing fee for this action and is 7 likely unable to pay, making monetary sanctions of little use. 8 Accordingly, it is HEREBY ORDERED THAT: 9 1. Within fourteen (14) days of service of this Order, Plaintiff shall file either 10 an amended complaint or a notice of willingness to proceed on his 11 cognizable claim, or shall show cause as to why this action should not be 12 dismissed with prejudice for failure to prosecute and failure to comply with 13 the Court’s order (ECF No. 15); and 14 2. If Plaintiff fails to show cause or file an amended complaint or notice of 15 willingness to proceed on his cognizable claim, the undersigned will 16 recommend this action be dismissed. 17 18 19 IT IS SO ORDERED. Dated: September 14, 2016 /s/ 20 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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