Bun v. Felker et al

Filing 115

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/03/13 ordering this action is dismissed without prejudice. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHANTHON BUN,

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No. 2:09-cv-631-EFB P

Plaintiff,

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v.

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FELKER et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983.1 On June 18, 2013 the court ordered plaintiff to file a pretrial statement within 30

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days. ECF No. 101. That order informed plaintiff of the requirements for preparing and filing a

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pretrial statement. Id. It also warned plaintiff that his failure to file a pretrial statement could

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result in the imposition of sanctions, including dismissal of this action. Id. The court granted

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plaintiff several extensions of time, ultimately resulting in an extension of the deadline for filing a

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pretrial statement to November 29, 2013. Despite these extensions of time, re-service of the June

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18 order on plaintiff, and additional warnings that failure to comply would result in dismissal,

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plaintiff has not filed a pretrial statement. Moreover, his filings in this action suggest that despite

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months to prepare a pretrial statement, he has not even begun the process. See, e.g., ECF No. 113

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1)
and is before the undersigned pursuant to the parties’ consent. E.D. Cal. Local Rules, Appx. A, at
(k).
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(Nov. 7, 2013 filing, asking how to write a pretrial statement). Plaintiff has disobeyed this court’s

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order and failed to prosecute this action. The appropriate action is dismissal without prejudice.

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A district court must “weigh five factors to determine whether to dismiss a case for lack of

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prosecution: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring the

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Eisen,

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31 F.3d 1447, 1451 (9th Cir. 1994); accord, Southwest Marine Inc. v. Danzig, 217 F.3d 1128,

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1138 (9th Cir. 2000). Here, the first two Ferdik factors support dismissal, as it appears that the

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court is devoting its limited judicial resources to this action despite plaintiff’s apparent intent to

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abandon it. Moreover, plaintiff’s failure to comply with court orders and Local Rules delays the

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progress of this litigation, likely causing prejudice to defendant. In addition, the court has already

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warned plaintiff that his failure to file a pretrial statement could result in dismissal, and monetary

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sanctions would be futile given plaintiff’s indigent status. Having considered the Ferdik factors,

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and in light of plaintiff’s failure to prosecute this action by filing a pretrial statement as directed,

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the court finds that dismissal of this action is appropriate.

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Furthermore, a party’s failure to comply with any order or with the Local Rules “may be

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grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or

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within the inherent power of the Court.” E.D. Cal. Local Rule 110. The court may dismiss an

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action with or without prejudice, as appropriate, if a party disobeys an order or the Local Rules.

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See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse

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discretion in dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an

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amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d

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1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule

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regarding notice of change of address affirmed).

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Accordingly, it is hereby ORDERED that this action is dismissed without prejudice. See

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Fed. R. Civ. P. 41(b); E.D. Cal. Local Rule 110, 183(b).

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Dated: December 3, 2013.

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