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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL COHEN,

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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

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Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this

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civil rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate

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Judge jurisdiction. (ECF No. 11.) No other parties have appeared in the action.

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On May 30, 2017, the Court dismissed Plaintiff’s first amended complaint (ECF

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No. 15) for failure to state a claim, but granted him thirty days to amend. That deadline

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passed without Plaintiff filing an amended pleading or otherwise responding to the Court.

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Accordingly, on August 2, 2017, the Court ordered Plaintiff to show cause why his

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case should not be dismissed, with prejudice, for failure to state a claim, failure to obey a

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court order, and failure to prosecute. (ECF No. 16.) The Court gave Plaintiff fourteen

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days within which to respond to the order to show cause. Plaintiff failed to do so.

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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.” District courts have the

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inherent power to control their dockets and, “in the exercise of that power, they may

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impose sanctions including, where appropriate, default or dismissal.” Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with

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prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure

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to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissing for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-

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61 (9th Cir. 1992) (dismissing for failure to comply with an order requiring amendment of

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a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissing for

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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of

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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissing

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for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th

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Cir. 1986) (dismissing for lack of prosecution and 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, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting

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this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor –

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public policy favoring disposition of cases on their merits – is greatly outweighed by the
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factors in favor of dismissal discussed herein. With respect to the availability of lesser

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sanctions, at this stage in the proceedings there is little available which would constitute

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a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not

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paid the filing fee for this action and is likely unable to pay, making monetary sanctions

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of little use. Finally, the order to show cause warned Plaintiff that his failure to comply

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may result in dismissal, with prejudice. (ECF No. 16.) Thus, Plaintiff was on notice that

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his failure to communicate with the Court could result in dismissal of his complaint.

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Based on the foregoing, it is HEREBY ORDERED THAT:

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1.

The action is DISMISSED, with prejudice, for failure to state a claim, failure

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to comply with the Court’s orders (ECF Nos. 15, 16), and failure to

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prosecute; and

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2.

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The Clerk of Court is directed to terminate all pending motions and close
the case.

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IT IS SO ORDERED.
Dated:

August 23, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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