Gilliam v. O'Neill et al

Filing 35

ORDER DISMISSING CASE for failure to respond to Order to Show Cause, failure to prosecute and failure to obey court orders signed by District Judge Dale A. Drozd on 9/9/2020. CASE CLOSED.(Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM JESSE GILLIAM, 12 13 14 15 No. 1:19-cv-01711-DAD-SAB Plaintiff, v. BARBARA HOPE O’NEILL, et al., ORDER DISMISSING CASE FOR FAILURE TO RESPOND TO ORDER TO SHOW CAUSE, FAILURE TO PROSECUTE, AND FAILURE TO OBEY COURT ORDERS Defendants. 16 17 18 On August 20, 2020, the court directed plaintiff Williams Jesse Gilliam, who is 19 proceeding pro se in this action, to show cause why this action should not be dismissed due to his 20 failures to prosecute and obey court orders. (Doc. No. 34.) That order outlined plaintiff’s 21 repeated failures to prosecute this action and obey court orders, which the court incorporates by 22 reference here. (See id. at 1–4.) The order directed plaintiff to show cause in writing within 23 fourteen (14) days of service of the order why this action should be dismissed due to plaintiff’s 24 failure to prosecute this action. Well over fourteen days have passed since the issuance of the 25 August 20, 2020 order to show cause, and no response has been filed by plaintiff, nor has he 26 otherwise communicated with the court. For the reasons set forth below, the court will dismiss 27 this action due to plaintiff’s failures to prosecute this action, obey court orders, and respond to the 28 August 20, 2020 order to show cause. 1 1 In this regard, the Ninth Circuit has stated as follows: 2 In determining whether to dismiss a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. 3 4 5 6 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); see also In re Phenylpropanolamine 7 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006); Bautista v. Los Angeles Cty., 216 F.3d 8 837, 841 (9th Cir. 2000). 9 Moreover, the Local Rules of this court state that the failure of a party to comply with the 10 any order of the court “may be grounds for imposition by the Court of any and all sanctions 11 authorized by statute or Rule or within the inherent power of the Court.” L.R. 110. Any 12 individual representing himself or herself without an attorney is nonetheless bound by the Federal 13 Rules of Civil Procedure, the Local Rules, and all applicable law. L.R. 183(a). A party’s failure 14 to comply with applicable rules and law may be grounds for dismissal or any other sanction 15 appropriate under the Local Rules. Id.; see also Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 16 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 17 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint), 18 as amended (May 22, 1992). “Despite this authority, dismissal is a harsh penalty and, therefore, it 19 should only be imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. 20 Here, as noted in the August 20, 2020 order to show cause, plaintiff has repeatedly failed 21 to prosecute this action and comply with court orders. His failures include: (1) not serving some 22 of the defendants in this action, despite being granted ample opportunity to do so; (2) not 23 opposing or otherwise responding to two pending motions to dismiss, the granting of which will 24 result in the dismissal of each of the claims plaintiff appears to be asserting in this action; and (3) 25 not objecting to or otherwise responding to two sets of findings and recommendations, which 26 collectively recommend the dismissal of four named defendants due to plaintiff’s repeated 27 failures to serve them in compliance with Federal Rule of Civil Procedure 4(m). (See generally 28 ///// 2 1 Doc. No. 34.) In addition, more than fourteen days have passed since service of the court’s order 2 to show cause, and plaintiff has not responded to the court’s order or otherwise communicated 3 with the court. In fact, as noted in the order to show cause, plaintiff has not communicated with 4 the court since April of this year. 5 Accordingly, the court finds that each of the factors outlined by the Ninth Circuit in 6 Pagtalunan are met here. Here, while this case has not been pending long, the public has a great 7 interest in the expeditious resolution of this and all litigation heard in this district, as it has one of 8 the busiest dockets in the country. See Ellis v. Checkmate Staffing, Inc., No. 2:08-cv-00129- 9 JAM-CKD, 2015 WL 351441, at *2 (E.D. Cal. Jan. 26, 2015); (see also Doc. No. 5). For similar 10 reasons, the court has a strong need to control its docket. The court is aware of no prejudice to 11 defendants if this action is dismissed. Finally, there are no less drastic alternatives available to 12 the court when faced with a litigant who simply fails to respond to court orders. Therefore, 13 considering the factors noted above and that the deadline to respond to the court’s order to show 14 cause has passed without response from the plaintiff, the court will dismiss this case. 15 ORDER 16 For the reasons set forth above, 17 1. 18 19 2020 order to show cause, prosecute this action, and obey court orders; 2. 20 21 This action is dismissed due to plaintiff’s failures to respond to the August 20, The two pending motions to dismiss (Doc. Nos. 18 & 31) are denied as having been rendered moot by the issuance of this order of dismissal; 3. The court declines to adopt the two pending sets of findings and recommendations 22 (Doc. Nos. 27 & 30) as having been rendered moot by the issuance of this order; 23 and 24 25 26 27 4. The Clerk of the Court is direct to close this case. IT IS SO ORDERED. Dated: September 9, 2020 UNITED STATES DISTRICT JUDGE 28 3

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