(PS) Oliver v. Ramsey ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARON MICHAEL OLIVER, No. 2:19-cv-01782-KJM-KJN 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 MICHAEL L. RAMSEY et al., 15 Defendants. 16 17 Plaintiff Daron Oliver, proceeding without counsel, commenced this action on September 18 9, 2019. (ECF No. 1.)1 On October 12, 2016, the court granted plaintiff’s amended motion to 19 proceed in forma pauperis and dismissed his complaint with leave to amend. (ECF No. 3.) 20 Plaintiff was given 28 days to file either an amended complaint or a notice of voluntary dismissal 21 of the action. (Id.) Additionally, plaintiff was expressly cautioned that failure to file either an 22 amended complaint or a notice of voluntary dismissal by the required deadline may result in 23 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Id.) 24 Although that deadline has now long passed, plaintiff has failed to file a first amended 25 complaint or notice of voluntary dismissal. Therefore, at this juncture, the court finds that 26 dismissal of the action is appropriate. 27 28 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21). 1 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 2 with these Rules or with any order of the Court may be grounds for imposition by the Court of 3 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 4 Moreover, Eastern District Local Rule 183(a) provides, in part: 5 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable 6 law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for 7 dismissal, judgment by default, or any other sanction appropriate under these Rules. 8 9 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 10 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 11 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 12 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 13 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 14 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 15 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 16 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 17 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 18 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 19 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 20 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 21 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 22 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 23 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 24 may impose sanctions including dismissal or default). 25 A court must weigh five factors in determining whether to dismiss a case for failure to 26 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 27 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 28 //// 1 (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 2 policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 3 4 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46 5 F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of 6 conditions precedent before the judge can do anything, but a way for a district judge to think 7 about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 8 (9th Cir. 2006). 9 Here, the first two Ferdik factors strongly support dismissal. Plaintiff’s failure to comply 10 with the court’s orders and deadlines suggests that plaintiff is not interested in seriously 11 prosecuting the action and does not take his obligations to the court and defendants seriously. 12 Therefore, any further time spent by the court on this case will consume scarce judicial resources 13 and take away from other active cases. 14 The third Ferdik factor, prejudice to a defendant, also slightly favors dismissal. To be 15 sure, defendants have not yet appeared in the action, but plaintiff’s unreasonable delay in 16 prosecuting this action cannot be said to be without consequences. With the passage of time, 17 evidence becomes stale and/or unavailable, making it more difficult to assess a case and mount a 18 potentially viable defense. 19 The fifth Ferdik factor, which considers the availability of less drastic measures, also 20 supports dismissal of this action. The court has ordered plaintiff to file an amended complaint 21 and he has entirely failed to do so. At this juncture, the court finds no suitable alternative to 22 recommending dismissal of the action. 23 The court recognizes the importance of giving due weight to the fourth Ferdik factor, 24 which addresses the public policy favoring disposition of cases on the merits. However, the 25 fourth Ferdik factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure 26 to comply with court orders that precludes a disposition on the merits. 27 Therefore, after carefully evaluating and weighing the Ferdik factors, the court concludes 28 that dismissal is appropriate. 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. The action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 3 Al(b). 4 2. The Clerk of Court be directed to close this case. 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 7 | days after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 11 || objections. The parties are advised that failure to file objections within the specified time may 12 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 13 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 14 IT IS SO RECOMMENDED. 15 || Dated: December 23, 2019 Aectl Aharon 17 KENDALL J. NE 16.oliv.1782 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28