Segovia v. State of California, et al.

Filing 29

ORDER signed by Magistrate Judge Deborah Barnes on 3/28/2017 ORDERING plaintiff to SHOW CAUSE within 14 days why this action should not be dismissed for failure to prosecute. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID SEGOVIA,

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Plaintiff,

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No. 2:14-cv-0715 GEB DB P

v.

ORDER

STATE OF CALIFORNIA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis seeking relief pursuant

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to 42 U.S.C. § 1983. Plaintiff’s first amended complaint is the operative pleading and was found

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to state claims against defendants Convalecer, Moon, and Peters. (ECF Nos. 9, 12.)

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Before the court is defendants Moon and Peters’s December 1, 2016, motion for summary

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judgment. (ECF No. 27.) To date, plaintiff has not filed an opposition or statement of non-

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opposition to this motion. This failure to oppose follows several instances in which plaintiff has

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failed to prosecute this action, including (1) his failure to respond to the court’s December 20,

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2016, directive to submit additional information within 60 days to effectuate service on defendant

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Convalecer (ECF No. 28); (2) his failure to respond at all to defendant Peters’s July 25, 2016,

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discovery requests; and (3) his failure to file an opposition or statement of non-opposition to

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defendants’ September 9, 2016, motion to compel (ECF No. 25).

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Local Rule 230(l) provides in part: “Failure of the responding party to file written

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opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

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the granting of the motion . . . .” Furthermore, Local Rule 110 provides that failure to comply

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with the Local Rules or any order of the court “may be grounds for imposition of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court.”

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District courts have the inherent power to control their dockets and “in the exercise of that

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power, they may impose sanctions including, where appropriate . . . dismissal of a case.”

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Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action,

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with prejudice, based on a party’s failure to prosecute, failure to obey a court order, or failure to

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comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal

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for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

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(dismissal for failure to comply with an order requiring amendment of a complaint); Carey v.

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King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule

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requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833

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F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v.

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Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to

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comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey a court

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order, or failure to comply with local rules, the Court must consider several factors: (1) the

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public’s interest in expeditious resolution of litigation, (2) the Court’s need to manage its docket,

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(3) the risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on

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their merits, and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;

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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,

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46 F.3d at 53.

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In the instant case, the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing its docket weigh in favor of dismissal. The third factor, risk of

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prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury arises

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from the occurrence of unreasonable delay in prosecuting this action. Anderson v. Air West, 542
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F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of cases on

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their merits – is greatly outweighed by the factors in favor of dismissal discussed herein. Finally,

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as for the availability of lesser sanctions, at this stage in the proceedings there is little available

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which would constitute a satisfactory lesser sanction while preserving scarce court resources.

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Plaintiff has not paid the filing fee for this action and is likely unable to pay, making monetary

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sanctions of little use.

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Accordingly, it is HEREBY ORDERED that plaintiff shall show cause within fourteen

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days from the date of this order why this action should not be dismissed for failure to prosecute.

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Dated: March 28, 2017

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/DLB7;
DB/Inbox/Substantive/sego0715.osc

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