Moreno v. Putnam et al

Filing 7

ORDER to SHOW CAUSE why this Action Should Not Be Dismissed for Failure to Comply with a Court Order, signed by Magistrate Judge Michael J. Seng on 1/3/17. Fourteen-Day Show Cause Response. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CESAR MORENO, 10 11 12 13 Plaintiff, v. S. PUTNAM, et al., Defendants. CASE No. 1:16-cv-1429- MJS (PC) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO COMPLY WITH A COURT ORDER FOURTEEN-DAY DEADLINE 14 15 16 17 18 Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). On November 23, 2016, Plaintiff’s complaint was dismissed with leave to amend, 19 and Plaintiff was granted thirty days to file an amended complaint. (ECF No. 6.) That 20 thirty day period has now passed, and Plaintiff has not filed an amended complaint or 21 otherwise responded to the Court’s order. 22 Local Rule 110 provides that “failure of counsel or of a party to comply with these 23 Rules or with any order of the Court may be grounds for imposition by the Court of any 24 and all sanctions . . . within the inherent power of the Court.” 25 District courts have the inherent power to control their dockets and “in the 26 exercise of that power, they may impose sanctions including, where appropriate . . . 27 dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 28 court may dismiss an action, with prejudice, based on a party’s failure to prosecute, 1 1 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 2 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 3 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 4 comply with an order requiring amendment of a complaint); Carey v. King, 856 F.2d 5 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro 6 se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 7 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. 8 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 9 failure to comply with local rules). 10 In determining whether to dismiss an action for lack of prosecution, failure to obey 11 a court order, or failure to comply with local rules, the Court must consider several 12 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 13 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 14 favoring disposition of cases on their merits, and (5) the availability of less drastic 15 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 16 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 17 In the instant case, the public’s interest in expeditiously resolving this litigation 18 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 19 factor, risk of prejudice to Defendants, neither weighs for nor against dismissal since no 20 Defendant has yet to appear in this action. The fourth factor – public policy favoring 21 disposition of cases on their merits – is greatly outweighed by the factors in favor of 22 dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this 23 stage in the proceedings there is little available which would constitute a satisfactory 24 lesser sanction while preserving scarce Court resources. Plaintiff has not paid the filing 25 fee for this action and is likely unable to pay, making monetary sanctions of little use. 26 27 Accordingly, IT IS HEREBY ORDERED that Plaintiff shall show cause in writing within fourteen days from the date of this Order why this action should not be dismissed 28 2 1 for failure to comply with a court order. Alternatively, Plaintiff may submit an amended 2 complaint. 3 4 5 6 IT IS SO ORDERED. Dated: January 3, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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