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Vidrio v. Gipson

United States District Court, E.D. California

April 21, 2017

OSCAR VIDRIO, Plaintiff,
v.
WARDEN CONNIE GIPSON, Defendants.

          ORDER DISMISSING WITH PREJUDICE (Doc. 43)

         On March 8, 2017, the Court entered an order instructing Plaintiff to file a statement showing cause as to why the Court should not dismiss this case (the "Order to Show Cause"). (Doc. 43 at 2.) To date, Plaintiff has not responded to the Order to Show Cause. Accordingly, for the reasons provided herein, the Court DISMISSES this case WITH PREJUDICE.

         I. BACKGROUND

         This action arises out of Defendants' alleged failure to render medical care to Plaintiff, an inmate. Plaintiff, who was represented by counsel, filed his first complaint on January 6, 2016. (Doc. 1.) On May 12, 2016, Plaintiff filed the currently operative First Amended Complaint for Damages (the "Complaint"). (Doc. 17.) The Complaint includes a single claim against all Defendants under 42 U.S.C. § 1983 for failure to render medical care. (See Id. ¶¶ 30-34.)

         On December 13, 2016, Plaintiffs attorney filed a Motion to Withdraw as Plaintiffs Counsel of Record Without Substitution (the "Motion to Withdraw"). (Doc. 29.) Plaintiffs counsel filed a declaration in support of the Motion to Withdraw in which he stated that he confirmed Plaintiffs current address in a conversation with Plaintiffs sister. (Doc. 39 ¶ 2.) Plaintiffs counsel also stated that he sent copies of the Motion to Withdraw to Plaintiff at his current address. (Id. ¶¶ 4-5.)

         The Court held a hearing regarding the Motion to Withdraw on February 15, 2017. (Doc. 40.) During this hearing, Defendants "represented . . . that Plaintiff has not provided the requisite discovery by the deadlines provided in the [s]cheduling [o]rder for this case." (Doc. 41.)

         By its order entered on February 16, 2017, the Court granted the Motion to Withdraw.

(Id.) The Court also stated the following:

[T]he Court ORDERS Plaintiff to retain counsel, if he so chooses, by no later than March 1, 2017. The Court further ORDERS that, if Plaintiff wishes to continue litigating this case, then by no later than March 3, 2017, (1) Plaintiffs new counsel shall notice their appearance on behalf of Plaintiff on the docket for this case; or (2) Plaintiff shall file a notice on the docket for this case that he will proceed to litigate this case pro se. The Court CAUTIONS Plaintiff that, if counsel does not notice an appearance on behalf of Plaintiff or Plaintiff does not notify the Court of his intent to proceed pro se by March 3, 2017, then the Court shall enter an order to show cause as to why this case should not be dismissed.

(Id.) The Court directed the Clerk to send a copy of this order to Plaintiff at his current address, as identified by Plaintiff s former counsel. (Id.)

         The Court entered the Order to Show Cause on March 8, 2017. (Doc. 43.) In the Order to Show Cause, the Court noted that, "[t]o date, no counsel has noticed an appearance on behalf of Plaintiff and Plaintiff has not filed notice on the docket for this case that he will proceed to litigate this case pro se." (Id. at 2.) The Court therefore ordered "that, by no later than March 27, 2017, Plaintiff shall file a statement showing cause why the Court should not dismiss this action." (Id.) The Court also warned "Plaintiff that, if he fails to file this statement by March 27, 2017, the Court will dismiss this case, in its entirety." (Id.) Finally, the Court directed the Clerk to send a copy of the Order to Show Cause to Plaintiff at his current address. (Id.)

         There is no indication on the docket for this case that Plaintiff did not receive either the Order to Show Cause or the Court's February 16, 2017 order. Nonetheless, to date, Plaintiff has not filed a statement showing cause why the Court should not dismiss this action. Indeed, Plaintiff has not filed any response, whatsoever, to the Order to Show Cause. As such, the determination of whether to dismiss this case is now before the Court.

         II. LEGAL STANDARD

         Local Rule 110 provides that the "[f]ailure of counsel or of a party to comply with these [Local] Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." "District courts have inherent power to control their dockets" and "[i]n the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal." Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash RR Co., 370 U.S. 626 (1961)). "Dismissal ... is so harsh a penalty it should be imposed as a sanction only in extreme circumstances." Id. (citations omitted). Nonetheless, courts have found that dismissal with prejudice is warranted where a party fails "to prosecute an action, " "obey a court order, " or "comply with local rules." Tolle v. Portfolio Recovery Assocs. LLC, Case No. 1:15-cv-01797-LJO-SKO, 2017 WL 1079786, at *1 (E.D. Cal. Mar. 21, 2017) (collecting cases).

         The Ninth Circuit has stated that "[c]ourts are to weigh" the following "five factors in deciding whether to dismiss a case for failure to comply with a court order": (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) Prods. Liab. Litig.,460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). "These factors are 'not a series of conditions precedent before the judge can do anything, ' but a 'way for a district judge to think about what to do.'" Id. (quoting Valley Eng'rs Inc. v. Elec. Eng'g Co.,158 F.3d 1051, 1057 (9th Cir. ...


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