Thornton v. Grissom et al

Filing 29

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 2/6/17: 14-Day Deadline. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SIMON THORNTON, 12 13 14 15 16 Plaintiff, v. DONALD L. GRISSOM, et al., Defendants. CASE NO. 1:16-cv-0498-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 FOURTEEN-DAY DEADLINE 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. On October 5, 2016, Plaintiff’s First Amended Complaint (“FAC”) was screened and found to state cognizable Eighth Amendment excessive force and failure to protect claims against Defendants Grissom and Cruz. (ECF No. 18.) Plaintiff was then directed to file either a notice of his willingness to proceed on the FAC as screened or to file a Second Amended Complaint. Although Plaintiff filed a notice of intent to file an amended pleading, he has yet to file one and the deadline for filing has now passed. Local Rule 110 provides that “failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 1 District courts have the inherent power to control their dockets and “in the 2 exercise of that power, they may impose sanctions including, where appropriate . . . 3 dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 4 court may dismiss an action, with prejudice, based on a party’s failure to prosecute, 5 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 6 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 7 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 8 comply with an order requiring amendment of a complaint); Carey v. King, 856 F.2d 9 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro 10 se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 11 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. 12 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 13 failure to comply with local rules). 14 In determining whether to dismiss an action for lack of prosecution, failure to obey 15 a court order, or failure to comply with local rules, the Court must consider several 16 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 17 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 18 favoring disposition of cases on their merits, and (5) the availability of less drastic 19 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 20 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 21 In the instant case, the public’s interest in expeditiously resolving this litigation 22 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 23 factor, risk of prejudice to Defendants, neither weighs for nor against dismissal since no 24 Defendant has yet to appear in this action. The fourth factor – public policy favoring 25 disposition of cases on their merits – is greatly outweighed by the factors in favor of 26 dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this 27 stage in the proceedings there is little available which would constitute a satisfactory 28 2 1 lesser sanction while preserving scarce Court resources. Plaintiff has not paid the filing 2 fee for this action and is likely unable to pay, making monetary sanctions of little use. 3 4 5 Accordingly, it is HEREBY ORDERED THAT within fourteen days from the date of service of this order: 1. Plaintiff shall show cause why this action should not be dismissed for failure to 6 comply with a court order; 7 2. Alternatively, Plaintiff may: 8 a. File an amended complaint curing the deficiencies identified by the Court in 9 the October 5, 2016, Screening Order, or 10 b. Notify the Court in writing that he does not wish to file an amended 11 complaint and he is willing to proceed only on the claims found to be 12 cognizable in that order; and 13 14 3. If Plaintiff fails to respond to this order, the undersigned will recommend dismissal of this action for failure to obey a court order and failure to prosecute. 15 16 17 IT IS SO ORDERED. Dated: February 6, 2017 /s/ 18 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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