Calloway v. California Department of Corrections and Rehabilitation et al

Filing 15

ORDER to SHOW CAUSE why Action Should not be Dismissed with Prejudice for Failure to State a Claim, Failure to Obey a Court Order, and Failure to Prosecute signed by Magistrate Judge Michael J. Seng on 07/24/2017. (Flores, E)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 JAMISI JAMES CALLOWAY, 13 14 15 16 Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 17 18 Defendants. CASE NO. 1:16-cv-01305-DAD-MJS (PC) ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE (ECF No. 12) FOURTEEN (14) DAY DEADLINE 19 20 21 Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 22 On January 18, 2017, the Court dismissed Plaintiff’s complaint but gave thirty 23 days leave to amend. (ECF No. 12.) On February 6, 2017, Plaintiff filed a motion for 24 reconsideration of the Court’s screening order. (ECF No. 13.) On April 26, 2017, the 25 District Judge assigned to the case denied the motion for reconsideration and directed 26 Plaintiff to file his amended complaint within thirty days. (ECF No. 14.) To date, Plaintiff 27 has not filed an amended complaint or a request for additional time. 28 1 Local Rule 110 provides that “failure of counsel or of a party to comply with these 2 Rules or with any order of the Court may be grounds for imposition by the Court of any 3 and all sanctions . . . within the inherent power of the Court.” District courts have the 4 inherent power to control their dockets and “in the exercise of that power, they may 5 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 6 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 7 prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure 8 to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 9 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 10 61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a 11 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure 12 to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 13 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 14 comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 15 (dismissal for lack of prosecution and failure to comply with local rules). 16 In determining whether to dismiss an action for lack of prosecution, failure to obey 17 a court order, or failure to comply with local rules, the Court must consider several 18 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 19 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 20 favoring disposition of cases on their merits, and (5) the availability of less drastic 21 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 22 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 23 In the instant case, the public’s interest in expeditiously resolving this litigation 24 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 25 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 26 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 27 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 28 public policy favoring disposition of cases on their merits -- is greatly outweighed by the 2 1 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 2 sanctions, at this stage in the proceedings there is little available which would constitute 3 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 4 paid the filing fee for this action and is likely unable to pay, making monetary sanctions 5 of little use. 6 7 Accordingly, it is HEREBY ORDERED THAT: 1. Within fourteen (14) days of service of this Order, Plaintiff shall file either 8 an amended complaint or notice of voluntary dismissal, or shall show 9 cause as to why this action should not be dismissed with prejudice for 10 failure to state a claim, failure to prosecute, and failure to comply with the 11 Court’s order; and 12 2. If Plaintiff fails to show cause or file an amended complaint or notice of 13 voluntary dismissal, the undersigned will recommend that the action be 14 dismissed. 15 16 17 IT IS SO ORDERED. Dated: July 24, 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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