(PS) Johnson v. Vigen ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TODD LADON JOHNSON No. 2:19-cv-769-KJM-KJN PS 12 Plaintiff, 13 ORDER AND v. 14 FINDINGS AND RECOMMENDATIONS LAUREN VIGEN, 15 16 Defendant. 17 18 19 On July 2, 2019, the court granted plaintiff’s motion to proceed in forma pauperis, 20 dismissed plaintiff’s complaint with leave to amend, and provided plaintiff with 28 days to either 21 file a first amended complaint or a notice of voluntary dismissal of the action without prejudice. 22 (ECF No. 9.) Plaintiff was cautioned that failure to timely comply with the order may result in 23 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Id.) 24 After plaintiff failed to file either an amended complaint or a notice of voluntary dismissal 25 by the required deadline, the court considered whether the action should be dismissed. 26 Nevertheless, in light of plaintiff’s pro se status, and the court’s desire to resolve the action on the 27 merits, the court on August 13, 2019, issued an order to show cause as to why this action should 28 not be dismissed. (ECF No. 10.) The court also provided plaintiff with an additional opportunity 1 to file an amended complaint. (Id.) Plaintiff’s response to the order to show cause and his first 2 amended complaint were due within 14 days of that order, i.e., by August 27, 2019. (Id.) 3 Plaintiff was again expressly cautioned that failure to timely comply with all terms of the order 4 would result in dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 5 41(b). (Id.) 6 Although the applicable deadline has now passed, and despite the court’s clear 7 admonitions, plaintiff again entirely failed to respond to the court’s order. Therefore, at this 8 juncture, the court has little choice but to recommend dismissal of the action pursuant to Federal 9 Rule of Civil Procedure 41(b) for failure to comply with court orders and failure to prosecute the 10 action. 11 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 12 with these Rules or with any order of the Court may be grounds for imposition by the Court of 13 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 14 Moreover, Eastern District Local Rule 183(a) provides, in part: 15 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these 16 Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria 17 persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these 18 Rules. 19 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 20 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 21 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 22 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 23 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 24 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 25 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 26 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 27 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 28 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 1 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 2 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 3 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 4 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 5 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 6 may impose sanctions including dismissal or default). 7 A court must weigh five factors in determining whether to dismiss a case for failure to 8 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 9 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 10 (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 11 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 12 13 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 14 Here, the first two factors weigh in favor of dismissal, because this case has already been 15 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 16 factor also slightly favors dismissal, because, at a minimum, defendant have been deprived of an 17 opportunity to be promptly notified of the lawsuit and prepare a defense. With the passage of 18 time, witnesses’ memories fade and evidence becomes stale. 19 Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal, 20 because the court has already attempted less drastic alternatives. More specifically, the court, 21 cognizant of plaintiff’s pro se status, declined to initially dismiss the case, but instead allowed 22 plaintiff an opportunity to amend his complaint. The court also clearly cautioned plaintiff 23 regarding the potential consequences of any continued failure to comply with the court’s orders. 24 Additionally, given plaintiff’s failure to respond to any of the court’s orders and notices, it 25 appears that any further steps would be an exercise in futility. 26 Finally, as to the fourth factor, the public policy favoring disposition of cases on their 27 merits, that factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to 28 prosecute the case and comply with court orders that precludes a resolution on the merits. 1 Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal 2 | is appropriate. 3 FINDINGS, RECOMMENDATIONS, AND ORDER 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. The action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 6 A1(b). 7 2. The Clerk of Court be directed to close this case. 8 In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 9 | discovery, and motion practice in this action are stayed pending resolution of the findings and 10 | recommendations. With the exception of objections to the findings and recommendations and 11 any non-frivolous motions for emergency relief, the court will not entertain or respond to any 12 || motions and other filings until the findings and recommendations are resolved. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 15 || days after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be captioned 17 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 18 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 19 | objections. The parties are advised that failure to file objections within the specified time may 20 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 21 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 22 IT IS SO ORDERED AND RECOMMENDED. 23 | Dated: September 11, 2019 24 Fens Arn 25 KENDALL J. NE jr, john.769 UNITED STATES MAGISTRATE JUDGE 26 27 28