Aparicio v. Clark et al
Filing
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ORDER DISMISSING Action for Failure to Obey Court Order and Failure to State a Claim 14 , signed by Magistrate Judge Dennis L. Beck on 11/17/11. (CASE CLOSED)(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PASQUAL APARICIO,
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CASE NO. 1:09-CV-01783-DLB PC
Plaintiff,
ORDER DISMISSING ACTION FOR
FAILURE TO OBEY COURT ORDER AND
FAILURE TO STATE A CLAIM
v.
KEN CLARK, et al.,
(DOC. 14)
Defendants.
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Plaintiff Pasqual Aparicio (“Plaintiff”) is a California state prisoner proceeding pro se in
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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on October 9,
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2009. Doc. 1. On September 20, 2010, the Court dismissed Plaintiff’s complaint for failure to
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state a claim with leave to file an amended complaint within thirty days. Doc. 6. Plaintiff
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received an extension of time on June 6, 2011, and August 4, 2011. Docs. 11, 13. Plaintiff was
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granted up to and including September 6, 2011 in which to file his amended complaint. On
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October 13, 2011, Plaintiff was ordered to show cause within eighteen days why this action
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should not be dismissed for failure to obey a court order and failure to state a claim. Doc. 14. As
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of the date of this order, Plaintiff has not responded or otherwise complied.
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Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
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Rules or with any order of the Court may be grounds for the imposition by the Court of any and
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all sanctions . . . within the inherent power of the Court.” District courts have the inherent power
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to control their dockets and “in the exercise of that power, they may impose sanctions including,
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where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th
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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute
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an action, failure to obey a court order, or failure to comply with local rules. See, e.g.. Ghazali v.
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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik
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v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an
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order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
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1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court
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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)(dismissal
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for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
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1986)(dismissal for failure to lack of prosecution and failure to comply with local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey a
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court order, or failure to comply with local rules, the court must consider several factors: (1) the
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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;
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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on
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their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;
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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61;
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Ghazali, 46 F.3d at 53.
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In the instant case, the court finds that the public’s interest in expeditiously resolving this
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litigation and the court’s interest in managing the docket weigh in favor of dismissal. On July 7,
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2011, Plaintiff was ordered to file a signed complaint, but failed to do so. The third factor, risk
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of prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury arises
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from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542
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F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on
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their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally,
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a court’s warning to a party that his failure to obey the court’s order will result in dismissal
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satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833
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F.2d at 132-33; Henderson, 779 F.2d at 1424. The court’s order expressly stated: “Failure to
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timely respond or to show cause will result in dismissal of this action for failure to obey a court
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order and failure to state a claim Thus, Plaintiff had adequate warning that dismissal would
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result from his noncompliance with the Court’s order.
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Accordingly, it is HEREBY ORDERED that
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This action is DISMISSED for failure to obey the Court’s October 13, 2011 Order
and for failure to state a claim;
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This dismissal is subject to the three strikes provision of 28 U.S.C. § 1915(g).
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Silva v. Vittorio, No. 08-15620, 2011 WL 4436248, at *4 (9th Cir. Sept. 26,
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2011); and
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The Clerk of the Court is directed to close this action.
IT IS SO ORDERED.
Dated:
3b142a
November 17, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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