Flowers v. Cryer et al

Filing 16

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 13 , signed by Magistrate Judge Michael J. Seng on 10/24/17: 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 RUBEN FLOWERS, 11 12 13 14 15 16 CASE NO. 1:17-cv-00263-AWI-MJS (PC) Plaintiff, 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 Defendants. (ECF No. 13) v. REYES, et al., FOURTEEN (14) DAY DEADLINE 17 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 20 On May 17, 2017, the Court dismissed Plaintiff’s first amended complaint for 21 failure to state a claim but gave thirty days leave to amend. (ECF No. 13.) On July 12, 22 2017, Plaintiff filed a motion to extend time to file a second amended complaint. (ECF 23 No. 14.) That motion was granted, and Plaintiff was given a ninety-day deadline to 24 amend. That deadline has passed without Plaintiff filing either an amended pleading or 25 notice of voluntary dismissal, or seeking an extension of time to do so. 26 Local Rule 110 provides that “failure of counsel or of a party to comply with these 27 Rules or with any order of the Court may be grounds for imposition by the Court of any 28 1 and all sanctions . . . within the inherent power of the Court.” District courts have the 2 inherent power to control their dockets and “in the exercise of that power, they may 3 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 4 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 5 prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure 6 to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 7 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 8 61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a 9 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure 10 to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 11 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 12 comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 13 (dismissal for lack of prosecution and failure to comply with local rules). 14 In determining whether to dismiss an action for lack of prosecution, failure to obey 15 a court order, or failure to comply with local rules, the Court must consider several 16 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 17 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 18 favoring disposition of cases on their merits, and (5) the availability of less drastic 19 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 20 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 21 In the instant case, the public’s interest in expeditiously resolving this litigation 22 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 23 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 24 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 25 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 26 public policy favoring disposition of cases on their merits -- is greatly outweighed by the 27 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 28 sanctions, at this stage in the proceedings there is little available which would constitute 2 1 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 2 paid the filing fee for this action and is likely unable to pay, making monetary sanctions 3 of little use. 4 Accordingly, it is HEREBY ORDERED THAT: 5 1. Within fourteen (14) days of service of this Order, Plaintiff shall either: 6 a. File an amended complaint or notice of voluntary dismissal, or 7 b. Show cause as to why this action should not be dismissed with 8 prejudice for failure to state a claim, failure to prosecute, and failure 9 to comply with the Court’s order (ECF No. 13); and 10 2. If Plaintiff fails to comply with this order, the undersigned will recommend 11 that the action be dismissed, with prejudice, subject to the “three strikes” 12 provision set forth in 28 U.S.C. § 1915(g). 13 14 15 IT IS SO ORDERED. Dated: October 24, 2017 /s/ 16 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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