Penaloza v. Abdur-Rahman et al

Filing 8

ORDER to SHOW CAUSE signed by Magistrate Judge Deborah Barnes on 7/26/2017 ORDERING Plaintiff to show cause within 14 days of this order why this action should not be dismissed for failure to comply with a court order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT PENALOZA,

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Plaintiff,

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No. 2:17-cv-1015 DB P

v.

ORDER TO SHOW CAUSE

SALAHUDDIN ABDUR-RAHMAN, et
al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights
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action filed pursuant to 42 U.S.C. § 1983. He has consented to the jurisdiction of a magistrate
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judge.
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On June 8, 2017, plaintiff’s complaint was dismissed with leave to amend for failure to

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state a claim. (ECF No. 4.) Plaintiff was granted thirty days to file an amended complaint. That
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thirty-day period has now passed, and plaintiff has not filed an amended complaint or otherwise
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responded to the court’s order.
Local Rule 110 provides that “failure of counsel or of a party to comply with these Rules

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or with any order of the Court may be grounds for imposition by the Court of any and all
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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 impose sanctions including,

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where appropriate, default or dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

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Cir. 1986).

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

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for

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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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lack of prosecution and failure to 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 comply

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with a court order.

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Dated: July 26, 2017

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/DLB7;
DB/Inbox/Substantive/pena1015.osc

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