Manuel Herrera-Garcia v. Lucas

Filing 20

ORDER to SHOW CAUSE why action should not be dismissed for failure to obey a court order and failure to prosecute 19 signed by Magistrate Judge Michael J. Seng on 11/8/2017. Show Cause Response due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MANUEL HERRERA-GARCIA, 11 12 13 14 15 Plaintiff, v. A. LUCAS, Defendant. CASE NO. 1:17-cv-00635-DAD-MJS (PC) ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (ECF No. 19) FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. 19 On September 27, 2017, the Court screened Plaintiff’s complaint and dismissed it 20 with thirty days leave to amend. (ECF No. 19.) To date, Plaintiff has not filed an 21 amended complaint, a notice of voluntary dismissal, or a request for additional time. 22 Local Rule 110 provides that “failure of counsel or of a party to comply with these 23 Rules or with any order of the Court may be grounds for imposition by the Court of any 24 25 and all sanctions . . . within the inherent power of the Court.” District courts have the inherent power to control their dockets and “in the exercise of that power, they may 26 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 27 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with 28 1 prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure 2 to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 3 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 4 61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a 5 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure 6 to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 7 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 8 comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 9 (dismissal for lack of prosecution and failure to comply with local rules). 10 In determining whether to dismiss an action for lack of prosecution, failure to obey 11 a court order, or failure to comply with local rules, the Court must consider several 12 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 13 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 14 favoring disposition of cases on their merits, and (5) the availability of less drastic 15 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 16 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 17 In the instant case, the public’s interest in expeditiously resolving this litigation 18 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 19 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 20 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 21 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 22 public policy favoring disposition of cases on their merits -- is greatly outweighed by the 23 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 24 sanctions, at this stage in the proceedings there is little available which would constitute 25 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 26 paid the filing fee for this action and is likely unable to pay, making monetary sanctions 27 of little use. 28 Accordingly, it is HEREBY ORDERED THAT: 2 1 1. Within fourteen (14) days of service of this Order, Plaintiff shall file either 2 an amended complaint or notice of willingness to proceed, or shall show 3 cause as to why this action should not be dismissed for failure to prosecute 4 and failure to comply with the Court’s order (ECF No. 19); and 5 2. If Plaintiff fails to show cause or file an amended complaint or notice of 6 willingness to proceed, the undersigned will recommend dismissal of this 7 case. 8 9 10 IT IS SO ORDERED. Dated: November 8, 2017 /s/ 11 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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