United States District Court, E.D. California
STEVEN M. CROSBY, Plaintiff,
DR. NASTRAN HASHEMI, et al., Defendants.
ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE
TO STATE A CLAIM, FAILURE TO OBEY A COURT ORDER, AND FAILURE
TO PROSECUTE (ECF NOS. 12, 13)
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE.
Steven M. Crosby (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff initiated this action on August 26, 2016. (ECF No.
1.) Plaintiff has consented to magistrate judge jurisdiction.
(ECF No. 10.)
20, 2017, the Court issued a screening order dismissing
Plaintiff's complaint with leave to amend within thirty
(30) days. (ECF No. 12.) The Court expressly warned Plaintiff
that the failure to file an amended complaint in compliance
with the Court's order would result in this action being
dismissed, with prejudice, for failure to state a claim and
failure to obey a court order. (Id. at 10.)
Plaintiff failed to file an amended complaint or otherwise
respond to the Court's order. Therefore, on October 2,
2017, the Court issued an order to show cause why this action
should not be dismissed based on Plaintiff's failure to
comply with the Court's June 20, 2017 order, for failure
to state a claim, and for failure to prosecute. (ECF No. 13.)
response to the order to show cause was due on or before
October 26, 2017. As of the date of this order, Plaintiff has
not complied with or otherwise responded to the order to show
Rule 110 provides that “[f]ailure . . . of a party to
comply with these Rules or with any order of the Court may be
grounds for imposition by the Court of any and all sanctions
. . . within the inherent power of the Court.” District
courts have the 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., 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, failure to obey a court order, or failure to comply
with local rules. See, e.g., Ghazali v.
Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
noncompliance with local rule); 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 Serv., 833 F.2d 128, 130-33
(9th Cir. 1987) (dismissal for failure to comply with court
determining whether to dismiss an action, the Court must
consider several 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 the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions. Henderson v. Duncan, 779 F.2d
1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d
1439, 1440 (9th Cir. 1988).
Plaintiff's amended complaint is overdue. Despite
multiple attempts to communicate with Plaintiff, he has been
non-responsive to the Court's orders. The Court cannot
effectively manage its docket if Plaintiff ceases litigating
his case. Thus, the Court finds that both the first and
second factors weigh in favor of dismissal.
third factor, risk of prejudice to defendant, also weighs in
favor of dismissal, since a presumption of injury arises from
the occurrence of unreasonable delay in prosecuting an
action. Anderson v. Air W., 542 F.2d 522, 524 (9th
Cir. 1976). The fourth factor usually weighs against
dismissal because public policy favors disposition on the
merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th
Cir. 2002). However, “this factor lends little support
to a party whose responsibility it is to move a case toward
disposition on the merits but whose conduct impedes progress
in that direction, ” which is the case here. In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
the court's warning to a party that failure to obey the
court's order will result in dismissal satisfies the
“considerations of the alternatives” requirement.
Ferdik, 963 F.2d at 1262; Malone, 833 at
132-33; Henderson, 779 F.2d at 1424. The Court's
June 20, 2017 order expressly warned Plaintiff that his
failure to file an amended complaint would result in
dismissal of this action, with prejudice, for failure to
state a claim and failure to obey a court order. (ECF No. 12
at 10.) Plaintiff also was warned of the potential for
dismissal, with prejudice, by the Court's October 2, 2017
order to show cause. (ECF No. 13 at 2.) Thus, Plaintiff had
adequate warning that dismissal could result from his
at this stage in the proceedings there is little available to
the Court that would constitute a satisfactory lesser
sanction while protecting the Court from further unnecessary
expenditure of its scarce resources. Plaintiff is proceeding
in forma pauperis in this action, making monetary sanctions
of little use, and the preclusion of evidence or witnesses is
likely to have no effect given that Plaintiff has ceased
litigating his case.
Conclusion and Order
it is HEREBY ORDERED that this action is DISMISSED, with
prejudice, for failure to state a claim, failure to obey the