Olive v. Lopez et al

Filing 12

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 9/14/16. Amended Complaint or Show Cause Response Deadline: 14-Days. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAMIEN DWAYNE OLIVE,

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Plaintiff,
v.
S. LOPEZ, et al.,
Defendants.

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CASE NO. 1:16-cv-00427-AWI-MJS (PC)
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED WITH
PREJUDICE FOR FAILURE TO OBEY A
COURT ORDER AND FAILURE TO
PROSECUTE
(ECF No. 11)
FOURTEEN (14) DAY DEADLINE

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Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights

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action brought pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on March 29,

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2016. (ECF No. 1.)

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On July 28, 2016, the Court dismissed Plaintiff’s first civil rights complaint and

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granted Plaintiff thirty days to file an amended complaint or a notice of voluntary

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dismissal. (ECF No. 11.) To date, Plaintiff has done neither, nor has he requested an

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extension of time.

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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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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-

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61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

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complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure

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to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

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comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (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 1423-24; 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. 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. As Plaintiff is
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proceeding in forma pauperis, Plaintiff has not paid the filing fee for this action and is

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likely unable to pay, making monetary sanctions of little use.

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Accordingly, it is HEREBY ORDERED THAT:

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Within fourteen (14) days of service of this Order, Plaintiff shall file either

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an amended complaint or a notice of voluntary dismissal, or shall show

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cause as to why this action should not be dismissed with prejudice for

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failure to prosecute and failure to comply with the Court’s order (ECF No.

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11); and

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If Plaintiff fails to show cause or file an amended complaint or notice of

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voluntary dismissal, the undersigned will recommend this action be

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dismissed, with prejudice, subject to the “three strikes” provision set forth in

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28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

September 14, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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