Warrior v. Olvera et al

Filing 9

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 8 , signed by Magistrate Judge Michael J. Seng on 3/23/17: 14-Day Deadline. (Hellings, J)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 MARVELLOUS AFRIKAN WARRIOR, a.k.a. MARCELLUS GREENE Plaintiff, 12 13 14 15 16 v. LAUREL OLVERA, et al., Defendants. CASE NO. 1:16-cv-01567-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. 8) FOURTEEN (14) DAY DEADLINE 17 18 19 Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 20 On February 3, 2017, the Court dismissed Plaintiff’s complaint for failure to state a 21 claim but gave leave to amend within thirty days. (ECF No. 8.) To date, Plaintiff has not 22 filed an amended complaint or a request for additional time. 23 Local Rule 110 provides that “failure of counsel or of a party to comply with these 24 Rules or with any order of the Court may be grounds for imposition by the Court of any 25 and all sanctions . . . within the inherent power of the Court.” District courts have the 26 inherent power to control their dockets and “in the exercise of that power, they may 27 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 28 1 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 2 prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure 3 to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 4 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 5 61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a 6 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure 7 to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 8 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 9 comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 10 (dismissal for lack of prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for lack of prosecution, failure to obey 12 a court order, or failure to comply with local rules, the Court must consider several 13 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 14 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 15 favoring disposition of cases on their merits, and (5) the availability of less drastic 16 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 17 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 18 In the instant case, the public’s interest in expeditiously resolving this litigation 19 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 20 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 21 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 22 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 23 public policy favoring disposition of cases on their merits -- is greatly outweighed by the 24 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 25 sanctions, at this stage in the proceedings there is little available which would constitute 26 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 27 paid the filing fee for this action and is likely unable to pay, making monetary sanctions 28 of little use. 2 1 2 Accordingly, it is HEREBY ORDERED THAT: 1. Within fourteen (14) days of service of this Order, Plaintiff shall file either 3 an amended complaint or notice of voluntary dismissal, or shall show 4 cause as to why this action should not be dismissed with prejudice for 5 failure to state a claim, failure to prosecute, and failure to comply with the 6 Court’s order (ECF No. 8); and 7 2. If Plaintiff fails to show cause or file an amended complaint or notice of 8 voluntary dismissal, the undersigned will recommend that the action be 9 dismissed, with prejudice. 10 11 12 IT IS SO ORDERED. Dated: March 23, 2017 /s/ 13 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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