Massey v. Knowles, et al

Filing 11

ORDER signed by Circuit Judge Carlos T. Bea on 7/9/2012 ORDERING that Plaintiff's case is DISMISSED with prejudice, pursuant to FRCP 41(b), and Local Rules 110 and 183(a); the Clerk of Court is directed to close this case. CASE CLOSED (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Craig MASSEY,

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Plaintiff,

No. 2:08-cv-01824-CTB

vs.
Mike KNOWLES, et al.,
Defendant.

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ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE AND FAILURE TO
COMPLY WITH THE COURT’S ORDER
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BACKGROUND

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On August 6, 2008, Plaintiff Craig Massey filed a pro se complaint against prison official

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defendants and his own attorney, alleging denial of due process, cruel and unusual punishment,

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and ineffective assistance of counsel. An order reassigning the case to this visiting judge was

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returned as undeliverable on January 5, 2009. On February 3, 2010, this court ordered Plaintiff

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to show cause in writing why his complaint should not be dismissed for failure to keep the court

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apprised of his current address. The order was served by mail, and was returned to the court as

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undeliverable on February 16, 2010. Plaintiff has not responded to the court’s order, or contacted

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the court at all since the order.

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DISCUSSION
Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss a case for

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failure to prosecute or failure to comply with a court order. See Hells Canyon Pres. Council v.

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U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss sua sponte

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under Fed. R. Civ. P. 41(b) for failure to prosecute or to comply with the rules of civil procedure

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or a court’s orders). This court’s Local Rules 110 and 183(a) recognize the same authority. See
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E. Dist. Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any

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order of the Court may be grounds for imposition by the Court of any and all sanctions

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authorized by statute or Rule or within the inherent power of the Court.”); E. Dist. Local Rule

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183(a) (stating that any individual representing himself pro se is bound by the Federal Rules and

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Local Rules, and that “[f]ailure to comply therewith may be ground for dismissal . . . .”).

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A court may dismiss a case, with prejudice, based on a party’s failure to prosecute or

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failure to obey a court order. Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992). In

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determining whether to dismiss a case for failure to prosecute or failure to comply with a court

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order, “the Court must weigh the following factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy

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favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002) (citing Ferdik, 963 F.2d at 1260–61).

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This court finds that dismissal of Plaintiff’s case for failure to comply with the court’s

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Order to Show Cause is appropriate. The first two factors clearly weigh in favor of dismissal.

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Plaintiff’s failure to obey the court’s order, or even contact the court at all about his pending case

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during the last three and a half years, demonstrates that Plaintiff has abandoned the case or is not

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interested in prosecuting it. The third factor also weighs in favor of dismissal: the defendants

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have been prevented from expeditiously resolving the case due to Plaintiff’s noncompliance with

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this court’s order. The fourth factor also supports dismissal. The Plaintiff has not shown any

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interest in prosecuting the case, and there is no way for this court to further contact plaintiff.

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This court is thus unaware of any “less drastic alternatives” other than dismissal. While public

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policy favors disposition of cases on the merits, dismissal is proper “where at least four factors

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support dismissal or where at least three factors strongly support dismissal.” Hernandez v. City

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of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and internal quotation marks omitted).

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CONCLUSION
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The court finds dismissal appropriate for failure to prosecute and for failure to comply
with the court’s order.

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Accordingly, the court ORDERS that:

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Plaintiff’s case is DISMISSED with prejudice pursuant to Federal Rule of Civil

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Procedure 41(b), and Local Rules 110 and 183(a).

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2.

The Clerk of Court is directed to close this case.

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DATED: July 9, 2012

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/s/ Carlos T. Bea
Hon. Carlos T. Bea
U.S. Court of Appeals for the Ninth
Circuit, sitting by designation

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