United States District Court, E.D. California
ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE AND
FAILURE TO COMPLY WITH COURT ORDER; ORDER REVOKING IN FORMA
PAUPERIS STATUS (ECF NO. 23)
William Thornton is a state prisoner proceeding pro
se and in forma pauperis with a civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff opened
this case by mailing a letter to the U.S. District Court for
the Northern District of California on October 6, 2015. (ECF
No. 1.) The clerk opened a case for Plaintiff, but directed
him to file a complaint with the court to proceed with his
civil action. (ECF No. 2.) Plaintiff was warned that his
action would be dismissed if he did not file a complaint
within 28 days. The court later issued an order transferring
the case to the Eastern District of California. (ECF No. 11.)
Plaintiff was granted in forma pauperis status on
December 2, 2015. (ECF No. 14.)
September 27, 2016, Plaintiff had still not filed a complaint
in this action and the Court issued an order requiring
Plaintiff to file a complaint within 45 days. (ECF No. 17.)
Once again, Plaintiff was warned that a failure to file a
complaint would result in the dismissal of the action.
Plaintiff filed a request for a 60 day extension to his
deadline, which was granted. (ECF Nos. 18, 19.) The Court
reminded Plaintiff, however, that voluminous records should
not be attached to his complaint and that the complaint
should only contain a short and concise statement explaining
what happened to him and why he is entitled to relief.
December 28, 2016, Plaintiff requested another extension,
which was granted. (ECF No. 20.) On February 7, 2017,
Plaintiff again filed a request for an extension of time.
(ECF No. 22.) The Court denied his extension of time. (ECF
No. 23.) The Court also issued an Order to Show Cause why the
action should not be dismissed based on Plaintiff's
failure to file a complaint in compliance with multiple court
orders. The Order to Show Cause also asked Plaintiff to
explain why his in forma pauperis status should not
be revoked because he has previously had more than three
cases dismissed for failure to state a claim. It also warned
that failure to respond to the Order would lead to dismissal
of the case.
February 28, 2017, Plaintiff asked for an extension of time
to respond to the Order to Show Cause, which was granted.
(ECF Nos. 24, 25.) The deadline to respond to the Order to
Show Cause has now passed and Plaintiff has not filed any
IN FORMA PAUPERIS STATUS
explained in the Order to Show Cause, Plaintiff is subject to
28 U.S.C. § 1915(g), which provides that “[i]n no
event shall a prisoner bring a civil action . . . under this
section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
an action was dismissed because it was frivolous, malicious,
or failed to state a claim turns on an evaluation of the
dismissal order. Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005) (“prior dismissals would qualify
as strikes only if, after reviewing the orders dismissing
those actions and other relevant information, the district
court determined that they had been dismissed because they
were frivolous, malicious or failed to state a
claim.”). An “imminent danger” exists
“if the danger existed at the time the prisoner filed
the complaint.” Andrews v. Cervantes, 493 F.3d
1047, 1053 (9th Cir. 2007), citing United States v.
Jackson, 480 F.3d 1014, 1018-19 (9th Cir. 2007)
Order to Show Cause, the Court identified seven separate
cases, all of which were dismissed because they were either
frivolous or failed to state a claim. In Thornton v.
Cavalin, Case No. 3:11-cv-00108-BEN-CAB (S.D. Cal. July
19, 2011), for instance, Plaintiff's claims were
determined to be frivolous because they had been litigated in
a prior action. In Thornton v. Neotti, Case No.
3:10-cv-01677-LAB-BGS (S.D. Cal. Jan. 3, 2011),
Plaintiff's claims were dismissed because he failed to
state a claim under § 1983. And in Thornton v.
Cate, Case No. 3:10-cv-01585 (S.D. Cal. June 28, 2011),
the court dismissed Plaintiff's failure to provide
medical treatment claim because he could not adequately plead
that defendants acted with deliberate indifference to any
medical need. Plaintiff thus has at least three prior cases
that were dismissed because they were frivolous or failed to
state a claim.
explained in the Order to Show Cause, Plaintiff has not
demonstrated that he is in imminent danger of serious
physical injury. First, there is no operative complaint, so
Plaintiff cannot have plausibly alleged an imminent danger of
serious physical injury. Second, even if the Court were to
broadly construe the documents Plaintiff has filed with the
Court, it appears that Plaintiff filed this lawsuit simply
because he believes that a doctor at his prison claimed that
he received physical therapy when he did not, in fact,
receive physical therapy. This allegation does not show that
Plaintiff is in imminent danger of serious physical injury.
Accordingly, Plaintiff's in forma pauperis
status should be revoked.
TO COMPLY WITH COURT ORDER
Local Rules, corresponding with Rule 11 of the Federal Rules
of Civil Procedure, provide, “[f]ailure of counsel or
of a party to comply with . . . any order of the Court may be
grounds for the imposition by the Court of any and all
sanctions . . . within the inherent power of the
Court.” Local Rule 110. “District courts have
inherent power to control their dockets, ” and in
exercising that power, a court may impose sanctions,
including dismissal of an action. Thompson v. Housing
Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).
A court may dismiss an action with prejudice, based on a
party's failure to prosecute an action or failure to obey
a court order, or failure to comply with local rules.
See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61
(9th Cir. 1992) (dismissal for failure to comply with an
order requiring amendment of complaint); Malone v. U.S.
Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)
(dismissal for failure to comply with a court order);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for failure to prosecute and to comply with
determine whether to dismiss this action for failure to
comply with the directives set forth in its order, “the
Court must weigh the following factors: (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 defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.” Pagtalunan
v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
public's interest in expeditious resolution of litigation
always favors dismissal, '” id., quoting
Yourish v. California Amplifier, 191 F.3d 983, 990 (9th
Cir. 1999), and here, the action has been pending since
October 6, 2015. Plaintiff has been instructed multiple times
to file a complaint and has not complied. Plaintiff's
failure to respond to the Court's order reflects
Plaintiff's lack of interest in prosecuting this case.
Thus, both the first and second factors weigh in favor of
to the risk of prejudice, there is currently no operative
complaint that states a claim, minimizing the risk of
prejudice due to dismissal at this stage. Moreover,
“pendency of a lawsuit is not sufficiently prejudicial
in and of itself to warrant dismissal.” Id.,
citing Yourish, 191 F.3d at 991. In addition,
“delay inherently increases the risk that
witnesses' memories will fade and evidence will become