ORDER DENYING MOTION TO DISMISS AND DISCHARGING ORDER TO SHOW
ORDER VACATING TRIAL DATE, GRANTING REQUEST TO MODIFY SCHEDULING ORDER, AND REQUIRING PARTIES TO FILE JOINT STATEMENT WITHIN THIRTY DAYS REGARDING PROPOSED SCHEDULING ORDER
Plaintiff Herman D. Shead, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 5, 2009. This action is proceeding against Defendant Vang on Plaintiff's Eighth Amendment excessive force claim, which arises from an alleged incident on or around July 3, 2007, at Pleasant Valley State Prison.
This matter is currently set for jury trial on October 30, 2012. On July 24, 2012, following Plaintiff's failure to file his pretrial statement in compliance with the scheduling order, Defendant filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 16(f) and 41(b) and the inherent power of the court. In addition, the Court issued an order to show cause why the action should not be dismissed on August 1, 2012. On August 3, 2012, Plaintiff filed a notice of substitution of counsel, and on August 20, 2012, following approval of the substitution by the Court, Plaintiff's counsel filed an opposition to the motion to dismiss and a response to the order to show cause. Defendant filed a reply on August 23, 2012.
Rule 16(f) provides for the imposition of sanctions for the failure to obey a scheduling order and Rule 41(b) provides for the involuntary dismissal of an action for failure to prosecute or obey a court order. In addition, federal courts have the inherent authority to sanction conduct abusive of the judicial process. Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S.Ct. 2123 (1991). Dismissal with prejudice is an available sanction under all three sources of authority. Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996).
In determining whether to dismiss an action, the Court must weigh "(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 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations omitted).
While the public's interest in the expeditious resolution of litigation and the Court's need to manage its docket usually weigh in favor of dismissal, in this case, neither will be significantly hindered by a brief delay. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (four month delay weighed in favor of dismissal). Although Plaintiff failed to file his pretrial statement in compliance with the scheduling order, he was proceeding pro se at the time and he was engaged in seeking representation by counsel. While this does not in any way excuse the failure to obey the scheduling order, Plaintiff responded to the order to show cause and his counsel responded to the order to show cause and the motion to dismiss, evidencing the intent to prosecute the action.
With respect to the third factor, Defendant argues that he has been prejudiced because he has been unable to ascertain which factual issues and evidence Plaintiff believes are in dispute, and he has been unable to prepare for trial. However, Defendant was relieved of his obligation to file his pretrial statement pending resolution of these issues and he has suffered no actual prejudice as a result of Plaintiff's failure to file his pretrial statement, which has caused only a limited delay. Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1132 (9th Cir. 2008); Leon v. IDX Systems, Corp., 464 F.3d 951, 959-60 (9th Cir. 2006); Pagtalunan, 291 F.3d at 642; Anheuser-Busch, Inc. v. Natural Beverages Distributors, 69 F.3d 337, 353-54 (9th Cir. 1995).
As to the fourth factor, public policy favors the disposition of cases on their merits and necessarily weighs against dismissal. Pagtalunan, 291 F.3d at 643.
Finally, the Court must consider less drastic sanctions, Leon, 464 F.3d at 358, and the extreme sanction of dismissal is warranted only if a party has engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings, Anheuser-Busch, Inc., 69 F.3d at 348 (quotation marks and citation omitted); also Hearns, 530 F.3d at 1132; Leon, 464 F.3d at 958. For dismissal to be proper, the sanctionable conduct must have been due to willfulness, fault, or bad faith. Leon, 464 F.3d at 958; Anheuser-Busch, Inc., 69 F.3d at 348. Negligence does not suffice. Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001).
In this instance, lesser sanctions are available and will suffice. Plaintiff is now represented by counsel and there is no suggestion in the record that this situation will repeat itself. The Court finds that a formal warning that monetary sanctions or dismissal will be imposed if the Court's orders are again ...