Maciel v. CDCR, et al.

Filing 20

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 08/02/2017. (Flores, E)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ARMANDO MACIEL, 11 12 13 14 Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 15 16 Defendants. CASE NO. 1:16-cv-00996-DAD-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. 13) FOURTEEN (14) DAY DEADLINE 17 18 19 Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 20 On March 23, 2017, the Court screened Plaintiff’s first amended civil rights 21 complaint and dismissed it with leave to amend within thirty days. (ECF No. 13.) Plaintiff 22 requested (ECF Nos. 14 & 16) and was granted (ECF Nos. 15 & 17) two thirty-day 23 extensions of time to file his second amended complaint, most recently on June 20, 24 2017. To date, Plaintiff has not filed an amended complaint or a notice of voluntary 25 dismissal, nor has he requested an extension of time. 26 Local Rule 110 provides that “failure of counsel or of a party to comply with these 27 Rules or with any order of the Court may be grounds for imposition by the Court of any 28 1 and all sanctions . . . within the inherent power of the Court.” District courts have the 2 inherent power to control their dockets and “in the exercise of that power, they may 3 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 4 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 5 prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure 6 to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 7 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 8 61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a 9 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure 10 to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 11 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 12 comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 13 (dismissal for lack of prosecution and 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, also weighs in favor of dismissal, since a 24 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 25 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 26 public policy favoring disposition of cases on their merits -- is greatly outweighed by the 27 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 28 sanctions, at this stage in the proceedings there is little available which would constitute 2 1 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 2 paid the filing fee for this action and is likely unable to pay, making monetary sanctions 3 of little use. 4 Accordingly, it is HEREBY ORDERED THAT: 5 1. Within fourteen (14) days of service of this Order, Plaintiff shall file either 6 an amended complaint or a notice of voluntary dismissal, or shall show 7 cause as to why this action should not be dismissed with prejudice for 8 failure to prosecute and failure to comply with the Court’s order (ECF No. 9 13); and 10 2. If Plaintiff fails to show cause or file an amended complaint or notice of 11 voluntary dismissal, the undersigned will recommend this action will be 12 dismissed, with prejudice. 13 14 15 IT IS SO ORDERED. Dated: August 2, 2017 /s/ 16 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?