The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER VACATING TTCH AND TRIAL DATES, DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO COMPLY WITH THE SCHEDULING ORDER, AND DIRECTING CLERK TO ENTER JUDGMENT (Docs. 49 and 55)
Plaintiff Angel Hernandez, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 11, 2009. This action is set for jury trial on March 19, 2013, on Plaintiff's claims against Defendant Costner for use of excessive force, in violation of the Fourteenth Amendment, and for negligence under California law. Plaintiff's claims arise out of events which allegedly occurred at the Kings County Jail in Hanford, California in 2007.
Pursuant to the second scheduling order filed on July 16, 2012, Plaintiff's pretrial statement was due on or before November 5, 2012. Plaintiff failed to comply with the scheduling order and on November 28, 2012, the Court ordered Plaintiff to show cause within fifteen days why this action should not be dismissed, with prejudice, for failure to obey a court order and failure to prosecute.
II. Failure to Comply with Scheduling Order
On July 16, 2012, the Court issued a scheduling order requiring Plaintiff to file a pretrial statement on or before November 5, 2012. Plaintiff failed to comply with or otherwise respond to the order, and on November 28, 2012, Plaintiff was ordered to show cause within fifteen days why this action should not be dismissed. Plaintiff was warned that the failure to respond to the order would result in dismissal of this action, with prejudice. More than fifteen days have passed and Plaintiff has not filed a response to the order.*fn1
The failure to obey a scheduling order is grounds for the imposition of sanctions. Fed. R. Civ. P. 16(f)(1)(C). The second scheduling order contained notice to Plaintiff that the failure to file a pretrial statement in compliance with the order may result in the imposition of sanctions, including dismissal. (Doc. 49.) Further, in the order to show cause the Court warned Plaintiff that the failure to respond to the order would result in dismissal. (Doc. 55.)
"A scheduling order is not a frivolous piece of paper, idly entered . . . ." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (internal quotation marks and citation omitted). Parties are required to exercise due diligence, Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Johnson, 975 F.2d at 609), and the Court finds that Plaintiff's failure to file a pretrial statement and failure to respond to the order to show cause warrant the imposition of sanctions.
III. Dismissal as a Sanction
The Court has the inherent power to control its docket and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action for failure to comply with a pretrial order, 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). These factors guide a court in deciding what to do and are not conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted).
This case has been pending since 2009, and it is set for jury trial in three months. The expeditious resolution of litigation and the Court's need to manage its docket weigh in favor of dismissal. See id. at 1227. This action has been pending for almost four years, and Plaintiff had ample time to begin trial preparation and comply with the scheduling order. See id. The Court has an enormous caseload, and when litigants disregard orders of the court and deadlines, the Court's ability to manage its docket and guide cases toward resolution is significantly compromised. See id.
As for the risk of prejudice to Defendant, there is no identifiable prejudice in this instance. See id. at 1227-28.
Regarding the fourth factor, while public policy favors disposition on the merits and therefore weighs against dismissal, it is Plaintiff's own conduct which is at issue here ...