(PS) Edison v. Los Angeles Police Department ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEWIS EDISON, No. 2:20–cv–1304–KJM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 LOS ANGELES POLICE DEPARTMENT, 15 Defendant. 16 17 On June 30, 2020, plaintiff filed a complaint and accompanying motion to proceed in 18 forma pauperis (“IFP”). (ECF Nos. 1, 2). On July 14, the court granted the IFP request, but 19 dismissed all claims with leave to amend because the complaint lacked any facts to support his 20 allegations. (ECF No. 3.) Plaintiff was also ordered to show cause why the action should not be 21 transferred to the Central District of California, as all claims concerned actions taken by officers 22 in the Los Angeles Police Department. (Id.) The court instructed that plaintiff’s amended 23 complaint (or notice of voluntary dismissal) should be filed within 28 days, and warned him that 24 failure to do so could result in dismissal. (Id.) The deadline has now passed, and the court has 25 not received any filings from plaintiff in response to this order. 26 Eastern District Local Rule 183(a) provides, in part: 27 Any individual representing himself [] without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. 28 All obligations placed on “counsel” by these Rules apply to individuals appearing 1 in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules. 2 3 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 4 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 5 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 6 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 7 fails to comply with the court’s orders, or the Federal Rules of Civil Procedure. See Chambers v. 8 NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to dismiss a 9 suit for failure to prosecute”); Hells Canyon v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 10 2005) (sua sponte dismissal under Rule 41(b) approved plaintiff’s failure to prosecute or comply 11 with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 12 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 13 an action for failure to comply with any order of the court.”); Thompson v. Housing Auth. of City 14 of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent 15 power to control their dockets and may impose sanctions including dismissal or default). 16 A court must weigh five factors in determining whether to dismiss a case for failure to 17 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 18 rules. See Ferdik, 963 F.2d at 1260. These are: 19 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 20 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 21 (5) the availability of less drastic alternatives. 22 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 23 Here, the first two factors weigh in favor of dismissal, because this case has already been 24 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 25 factor also favors dismissal, because, at a minimum, defendants have been deprived of an 26 opportunity to be promptly notified of the lawsuit and prepare their defense. With the passage of 27 time, memories’ fade and evidence becomes stale. The fifth factor also favors dismissal because 28 the court has already attempted less drastic alternatives. Specifically, the court provided plaintiff MASS 2 UVM INIT IN RAMU Sr POO Ieee OY VV VI 1 | with leave to amend, as well as an opportunity to brief the venue issue, and warned plaintiff of the 2 || consequences for failure to do so. (ECF No. 3.) However, since plaintiff's initial filing, he has 3 | been incommunicado, leaving the court with little alternative but to recommend dismissal. Given 4 | his request to proceed IFP, it is unlikely that monetary sanctions would be effective. As to the 5 | fourth factor, the public policy favoring disposition on their merits, that factor is outweighed by 6 || the other Ferdik factors. Indeed, it is plaintiff's own failure to prosecute the case and comply 7 | with the rules that precludes a resolution on the merits. Therefore, after carefully evaluating the 8 | Ferdik factors, the court concludes that dismissal is appropriate. 9 RECOMMENDATIONS 10 Accordingly, IT IS HEREBY RECOMMENDED that: 11 1. Plaintiffs claims be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule 12 of Civil Procedure 41(b); and 13 2. The Clerk of Court be directed to CLOSE this case. 14 These findings and recommendations are submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 16 || days after being served with these findings and recommendations, any party may file written 17 | objections with the court and serve a copy on all parties. Such a document should be captioned 18 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 19 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 20 | objections. The parties are advised that failure to file objections within the specified time may 21 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 22 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 23 | Dated: September 1, 2020 24 Fens Arn 25 KENDALL J. NE edis. 1304 UNITED STATES MAGISTRATE JUDGE 26 27 28