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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CESAR MORENO,

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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

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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,

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and Plaintiff was granted thirty days to file an amended complaint. (ECF No. 6.) That

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thirty day period has now passed, and Plaintiff has not filed an amended complaint or

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otherwise responded to the Court’s order.

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Local Rule 110 provides that “failure of counsel or of a party to comply with these

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Rules or with any order of the Court may be grounds for imposition by the Court of any

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and all sanctions . . . within the inherent power of the Court.”

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District courts have the inherent power to control their dockets and “in the

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exercise of that power, they may impose sanctions including, where appropriate . . .

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dismissal of a case.” Thompson v. Housing 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,

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

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule);

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to

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comply with an order requiring amendment of a complaint); Carey v. King, 856 F.2d

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1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro

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se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d

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128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v.

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Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and

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failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey

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a court order, or failure to comply with local rules, the Court must consider several

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factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need

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to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy

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favoring disposition of cases on their merits, and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833

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F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the public’s interest in expeditiously resolving this litigation

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and the Court’s interest in managing its docket weigh in favor of dismissal. The third

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factor, risk of prejudice to Defendants, neither weighs for nor against dismissal since no

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Defendant has yet to appear in this action. The fourth factor – public policy favoring

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disposition of cases on their merits – is greatly outweighed by the factors in favor of

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dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this

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stage in the proceedings there is little available which would constitute a satisfactory

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lesser sanction while preserving scarce Court resources. Plaintiff has not paid the filing

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fee for this action and is likely unable to pay, making monetary sanctions of little use.

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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

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for failure to comply with a court order. Alternatively, Plaintiff may submit an amended

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complaint.

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IT IS SO ORDERED.
Dated:

January 3, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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