Miu v. Clark et al
Filing
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ORDER DISMISSING 7 Action, with Prejudice, for Failure to Prosecute signed by Judge Oliver W. Wanger on 6/24/2011. CASE CLOSED. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DANIEL MIU,
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CASE NO. 1:09-cv-01297-OWW-SMS PC
Plaintiff,
ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO PROSECUTE
v.
CLARK, et al.,
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Defendants.
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Plaintiff Daniel Miu (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s first
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amended complaint, filed January 25, 2010, against Defendants Enenmoh and Rameh for deliberate
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indifference to serious medical needs in violation of the Eighth Amendment. On May 3, 2011, an
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order issued directing Plaintiff to file a response to Defendants’ motion to dismiss within thirty days.
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More than thirty days have passed and Plaintiff has not filed a response or otherwise responded to
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the order.
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Plaintiff was warned that the failure to file a response to Defendants’ motion would result
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in dismissal of the action, with prejudice, for failure to prosecute. The Court has the inherent power
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to control its docket and may, in the exercise of that power, impose sanctions where appropriate,
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including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir.
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2000). In determining whether to dismiss an action for failure to comply with a pretrial order, the
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Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s
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need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring
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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re
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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006)
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(internal quotations and citations omitted). These factors guide a court in deciding what to do, and
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are not conditions that must be met in order for a court to take action. Id. (citation omitted).
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“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id.
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(quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action
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has been pending for more than two years. Plaintiff is obligated to comply with the Federal Rules
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of Civil Procedure, the Local Rules, and court orders. Plaintiff failed to comply with the order
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requiring him to respond to Defendants’ motion to dismiss. The Court cannot effectively manage
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its docket if a party ceases litigating the case. Thus, both the first and second factors weigh in favor
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of dismissal.
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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and
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of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the
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risk that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff’s
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failure to comply the Court’s order that is causing delay. Therefore, the third factor weighs in favor
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of dismissal.
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As for the availability of lesser sanctions, at this stage in the proceedings there is little
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available to the Court which would constitute a satisfactory lesser sanction while protecting the
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Court and the State of California from further unnecessary expenditures of their scare resources.
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Plaintiff is proceeding pro se and is a prisoner, making monetary sanctions likely of little use, and
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given this stage of the proceedings, the preclusion of evidence or witnesses is likely to have no effect
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on a plaintiff who has ceased litigating the case.
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Finally, because public policy favors disposition on the merits, this factor usually weighs
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against dismissal. Id. at 643. However, “this factor lends little support to a party whose
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responsibility it is to move a case toward disposition on the merits but whose conduct impedes
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progress in that direction,” as is the case here. In re Phenylpropanolamine (PPA) Products Liability
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Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (internal quotations and citations omitted).
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Based on Plaintiff’s failure to comply to with or otherwise respond to the Court’s order, the
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Court is left with no alternative but to dismiss the action for failure to prosecute. In re PPA, 460
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F.3d at 1228. This action, which has been pending since 2009, can proceed no further without
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Plaintiff’s cooperation and compliance with court orders, and the action cannot simply remain idle
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on the Court’s docket, unprosecuted. Id.
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Accordingly, it is HEREBY ORDERED that:
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This action is dismissed, with prejudice, for Plaintiff’s failure to prosecute; and
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All pending motions are terminated.
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IT IS SO ORDERED.
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Dated:
June 24, 2011
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/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
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