Cohen v. Alfaro, et al.

Filing 17

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 Michael J. Seng on 8/23/2017. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL COHEN, 12 13 14 15 16 Plaintiff, v. SANDRA ALFARO, et al., Defendants. CASE No. 1:17-cv-00191-MJS (PC) ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE TO PROSECUTE (ECF Nos. 15, 16) CLERK TO CLOSE CASE 17 18 19 Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this 20 civil rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate 21 Judge jurisdiction. (ECF No. 11.) No other parties have appeared in the action. 22 On May 30, 2017, the Court dismissed Plaintiff’s first amended complaint (ECF 23 No. 15) for failure to state a claim, but granted him thirty days to amend. That deadline 24 passed without Plaintiff filing an amended pleading or otherwise responding to the Court. 25 Accordingly, on August 2, 2017, the Court ordered Plaintiff to show cause why his 26 case should not be dismissed, with prejudice, for failure to state a claim, failure to obey a 27 court order, and failure to prosecute. (ECF No. 16.) The Court gave Plaintiff fourteen 28 days within which to respond to the order to show cause. Plaintiff failed to do so. 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 (dismissing for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 10 61 (9th Cir. 1992) (dismissing for failure to comply with an order requiring amendment of 11 a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissing for 12 failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 13 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissing 14 for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 15 Cir. 1986) (dismissing 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. With respect to 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. Finally, the order to show cause warned Plaintiff that his failure to comply 6 may result in dismissal, with prejudice. (ECF No. 16.) Thus, Plaintiff was on notice that 7 his failure to communicate with the Court could result in dismissal of his complaint. 8 Based on the foregoing, it is HEREBY ORDERED THAT: 9 1. The action is DISMISSED, with prejudice, for failure to state a claim, failure 10 to comply with the Court’s orders (ECF Nos. 15, 16), and failure to 11 prosecute; and 12 2. 13 The Clerk of Court is directed to terminate all pending motions and close the case. 14 15 16 IT IS SO ORDERED. Dated: August 23, 2017 /s/ 17 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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