Crosby v. Hashemi et al

Filing 14

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 11/06/2017. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN M. CROSBY,

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Plaintiff,
v.

Case No. 1:16-cv-01264-BAM (PC)
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM, FAILURE TO OBEY A COURT
ORDER, AND FAILURE TO PROSECUTE

DR. NASTRAN HASHEMI, et al.,
(ECF Nos. 12, 13)

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Defendants.

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Plaintiff Steven M. Crosby (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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August 26, 2016. (ECF No. 1.) Plaintiff has consented to magistrate judge jurisdiction. (ECF

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No. 10.)

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I.

Background

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On June 20, 2017, the Court issued a screening order dismissing Plaintiff’s complaint with

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leave to amend within thirty (30) days. (ECF No. 12.) The Court expressly warned Plaintiff that

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the failure to file an amended complaint in compliance with the Court’s order would result in this

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action being dismissed, with prejudice, for failure to state a claim and failure to obey a court

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order. (Id. at 10.) Plaintiff failed to file an amended complaint or otherwise respond to the

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Court’s order. Therefore, on October 2, 2017, the Court issued an order to show cause why this

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action should not be dismissed based on Plaintiff’s failure to comply with the Court’s June 20,
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2017 order, for failure to state a claim, and for failure to prosecute. (ECF No. 13.)
Plaintiff’s response to the order to show cause was due on or before October 26, 2017. As

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of the date of this order, Plaintiff has not complied with or otherwise responded to the order to

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show cause.

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II.

Discussion

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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Here, Plaintiff’s amended complaint is overdue. Despite multiple attempts to

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communicate with Plaintiff, he has been non-responsive to the Court’s orders. The Court cannot

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effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both

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the first and second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against
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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d

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639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products

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Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).

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Finally, the court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s June 20, 2017 order expressly

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warned Plaintiff that his failure to file an amended complaint would result in dismissal of this

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action, with prejudice, for failure to state a claim and failure to obey a court order. (ECF No. 12 at

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10.) Plaintiff also was warned of the potential for dismissal, with prejudice, by the Court’s

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October 2, 2017 order to show cause. (ECF No. 13 at 2.) Thus, Plaintiff had adequate warning

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that dismissal could result from his noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court that

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating his case.

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III.

Conclusion and Order

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Accordingly, it is HEREBY ORDERED that this action is DISMISSED, with prejudice,

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for failure to state a claim, failure to obey the Court’s orders, and failure to prosecute this action.

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This order terminates the action in its entirety.
IT IS SO ORDERED.

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Dated:

/s/ Barbara

November 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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