Garcia v. Podsakoff, et al.

Filing 12

ORDER DISMISSING Action, with Prejudice, for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 7/13/2017. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWIN GARCIA, 12 Plaintiff, 13 14 v. Case No. 1:16-cv-00394-BAM (PC) ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE PODSAKOFF, et al., (ECF Nos. 10, 11) 15 Defendants. 16 Plaintiff Edwin Garcia (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on 19 March 22, 2016. (ECF No. 1.) Plaintiff has consented to the jurisdiction of a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 7.) 21 I. Background 22 On April 17, 2017, the Court issued a screening order dismissing Plaintiff’s first amended 23 complaint with leave to amend within thirty (30) days. (ECF No. 10.) The Court expressly 24 warned Plaintiff that the failure to file an amended complaint in compliance with the Court’s 25 order would result in this action being dismissed for failure to obey a court order and failure to 26 state a claim. (Id. at 12.) Plaintiff failed to file an amended complaint or otherwise respond to 27 the Court’s order. 28 /// 1 1 On June 1, 2017, the Court issued an order directing Plaintiff to show cause in writing 2 within twenty (20) days why this action should not be dismissed, with prejudice, for failure to 3 state a claim, failure to obey a court order, and failure to prosecute. (ECF No. 11.) The Court 4 expressly warned Plaintiff that the failure to comply with the order would result in this action 5 being dismissed, with prejudice, for failure to state a claim, failure to obey a court order, and 6 failure to prosecute. (Id. at 2.) 7 Plaintiff’s response to the order to show cause was due on or before June 26, 2017. As of 8 the date of this order, Plaintiff has not complied with or otherwise responded to the order to show 9 cause. 10 II. Discussion 11 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 12 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 13 within the inherent power of the Court.” District courts have the inherent power to control their 14 dockets and “[i]n the exercise of that power they may impose sanctions including, where 15 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 16 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 17 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 18 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 19 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 20 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 21 (dismissal for failure to comply with court order). 22 In determining whether to dismiss an action, the Court must consider several factors: 23 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 24 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 25 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 26 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 27 Here, Plaintiff’s amended complaint is overdue. Despite multiple attempts to 28 communicate with Plaintiff, he has been non-responsive to the Court’s orders. The Court cannot 2 1 effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both 2 the first and second factors weigh in favor of dismissal. 3 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 4 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 5 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 6 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 7 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 8 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 9 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 10 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). Finally, the court’s warning to a party that failure to obey the court’s order will result in 11 12 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 13 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s April 17, 2017 order 14 expressly warned Plaintiff that his failure to file an amended complaint would result in dismissal 15 of this action, with prejudice, for failure to state a claim and failure to obey a court order. (ECF 16 No. 10 at 12.) Plaintiff also was warned of the potential for dismissal, with prejudice, by the 17 Court’s June 1, 2017 order to show cause. (ECF No. 11 at 2.) Thus, Plaintiff had adequate 18 warning that dismissal could result from his noncompliance. 19 Additionally, at this stage in the proceedings there is little available to the Court that 20 would constitute a satisfactory lesser sanction while protecting the Court from further 21 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 22 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 23 likely to have no effect given that Plaintiff has ceased litigating his case. 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 III. 2 Accordingly, it is HEREBY ORDERED that this action is DISMISSED, with prejudice, Conclusion and Order 3 for failure to state a claim, failure to obey the Court’s orders, and failure to prosecute this action. 4 This terminates the action in its entirety. 5 6 7 IT IS SO ORDERED. Dated: /s/ Barbara July 13, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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