(PC) Winters v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EUGENE WINTERS, Case No. 1:20-cv-00647-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 SHERMAN, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITHOUT PREJUDICE, 15 Defendants. FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE 16 (ECF No. 9) 17 FOURTEEN (14) DAY DEADLINE 18 19 I. Background 20 Plaintiff Eugene Winters (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On August 13, 2020, the Court screened the complaint and found that Plaintiff stated a 24 cognizable claim for unconstitutional conditions of confinement in violation of the Eighth 25 Amendment against Defendants Sherman and Milan, but failed to state any other cognizable 26 claims for relief. (ECF No. 9.) The Court ordered Plaintiff to file a first amended complaint or to 27 notify the Court in writing that he does not wish to file a first amended complaint and is willing to 28 proceed only on the cognizable claims identified. (Id. at 10.) The Court expressly warned 1 Plaintiff that his failure to comply with the Court’s order would result in dismissal of this action, 2 without prejudice, for failure to obey a court order and for failure to prosecute. (Id.) The 3 deadline for Plaintiff to file an amended complaint or a notice of his willingness to proceed on the 4 cognizable claims identified has expired, and Plaintiff has failed to respond to the Court’s order. 5 II. Failure to Prosecute and Failure to Obey a Court Order 6 A. Legal Standard 7 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 8 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 9 within the inherent power of the Court.” District courts have the inherent power to control their 10 dockets and “[i]n the exercise of that power they may impose sanctions including, where 11 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 12 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 13 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 14 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 15 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 16 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 17 (dismissal for failure to comply with court order). 18 In determining whether to dismiss an action, the Court must consider several factors: 19 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 20 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 21 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 22 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 23 B. Discussion 24 Here, Plaintiff’s amended complaint or notice of willingness to proceed on cognizable 25 claims is overdue, and he has failed to comply with the Court’s order. The Court cannot 26 effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both 27 the first and second factors weigh in favor of dismissal. 28 /// 1 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 2 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 3 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 4 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 5 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 6 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 7 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 8 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 9 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 10 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 11 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s August 13, 2020 order 12 expressly warned Plaintiff that his failure to comply would result in a recommendation of 13 dismissal of this action. (ECF No. 9, p. 10.) Thus, Plaintiff had adequate warning that dismissal 14 could result from his noncompliance. 15 Additionally, at this stage in the proceedings there is little available to the Court that 16 would constitute a satisfactory lesser sanction while protecting the Court from further 17 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 18 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 19 likely to have no effect given that Plaintiff has ceased litigating his case. 20 III. Conclusion and Recommendation 21 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 22 district judge to this action. 23 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 24 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court 25 order and for Plaintiff’s failure to prosecute this action. 26 These Findings and Recommendation will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 28 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 1 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 3 specified time may result in the waiver of the “right to challenge the magistrate’s factual 4 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 5 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 8 Dated: September 25, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28