(PS) Meeks v. Chronister ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JANAI MEEKS, No. 2:19-cv-2514-KJM-KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE; 13 v. SUPPLEMENTARY ORDER 14 NATASHA CHRONISTER, et al., (ECF No. 16, 20) 15 Defendants. 16 17 On December 13, 2020, plaintiff filed a complaint and accompanying motion to proceed 18 in forma pauperis (IFP). (ECF Nos. 1, 2). The court granted the IFP request on January 29, 19 2020. (ECF No. 4.) On February 5, plaintiff’s complaint was screened and was found to 20 potentially state claims against defendants. (ECF No 5.) Thus, the court determined that service 21 was appropriate, ordered the clerk to send plaintiff the necessary paperwork. (Id.) The court then 22 ordered plaintiff to supply the U.S. Marshal, within 30 days, all information necessary to 23 effectuate service, and to file a statement with the court that she had in fact sent this information 24 to the Marshal. (Id.) Plaintiff was warned that a “[f]ailure to comply with this order may result in 25 any appropriate sanctions, including monetary sanctions and/or dismissal of the action pursuant to 26 Federal Rule of Civil Procedure 41(b).” (Id. at 3.) 27 Instead, plaintiff filed a first amended complaint and other miscellaneous motions, 28 alongside a “notice of submitting service documents.” (ECF Nos. 8, 9, 11, 12, 13, 15.) Despite 1 the notice, which did not contain any information about where or how the documents were 2 submitted, the U.S. Marshal confirmed that no service documents had been received. On June 3, 3 the court again screened plaintiff’s complaint, ordered service, and again ordered plaintiff to 4 provide the necessary documents to the U.S. Marshal within 30 days and a notice to the court 10 5 days after. (ECF No. 16.) Plaintiff was again warned that a failure to provide the Marshal with 6 the necessary information and failure to follow the court’s order could result in sanctions, 7 including dismissal. (Id. at 4.) That deadline passed, and the court issued findings and 8 recommendations to dismiss this case without prejudice. (ECF No. 18.) However, on August 26, 9 plaintiff filed a document entitled “certificate of service,” which suggested that plaintiff was 10 attempting to provide the documents to the U.S. Marshal for service. (ECF No. 19.) Therefore, 11 out of an abundance of caution, the court withdrew its findings and recommendations, issued 12 specific instructions for plaintiff to follow regarding providing the necessary documents, and gave 13 plaintiff an additional month and a half to do so and inform the court of her actions. (ECF No. 14 20.) Yet again, plaintiff has failed to follow the court specific instructions, and it appears she has 15 not submitted the required documents for service. 16 Eastern District Local Rule 183(a) provides, in part: Any individual representing himself [] without an attorney is bound by the Federal 17 Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. 18 All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, 19 judgment by default, or any other sanction appropriate under these Rules. 20 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 21 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 22 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 23 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 24 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 25 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 26 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 27 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (sua sponte dismissal under Rule 41(b) approved 28 plaintiff’s failure to prosecute or comply with the rules of civil procedure or the court’s orders); 1 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil 2 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 3 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 4 curiam) (stating that district courts have inherent power to control their dockets and may impose 5 sanctions including dismissal or default). 6 A court must weigh five factors in determining whether to dismiss a case for failure to 7 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 8 rules. See Ferdik, 963 F.2d at 1260. These are: 9 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 10 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 11 (5) the availability of less drastic alternatives. 12 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 13 Here, the first two factors weigh in favor of dismissal, because this case has already been 14 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 15 factor also favors dismissal, because, at a minimum, defendants have been deprived of an 16 opportunity to be promptly notified of the lawsuit and prepare their defense. With the passage of 17 time, memories’ fade and evidence becomes stale. The fifth factor also favors dismissal because 18 the court has already attempted less drastic alternatives. On multiple occasions, the court has 19 provided plaintiff with instructions on how to submit information to the Marshal’s office for 20 service of defendants and warned plaintiff of the consequences for failure to do so. (ECF Nos. 5, 21 16, 20.) However, plaintiff has failed to take this step, leaving the court with little alternative but 22 to recommend dismissal. Given her request to proceed IFP, it is unlikely that monetary sanctions 23 could be effective. 24 As to the fourth factor, the public policy favoring disposition on their merits, that factor is 25 outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to prosecute the case 26 and comply with the rules that precludes a resolution on the merits. Therefore, after carefully 27 evaluating the Ferdik factors, the court concludes that dismissal is appropriate. See Durst v. Nat'l 28 Cas. Co., 452 F.2d 610, 610 (9th Cir. 1971) (affirming dismissal for failure to prosecute where MADE 2 EGET UING INIT IN RAUL Ot POM BUI Ee PAY OF ME 1 | plaintiff failed to serve process, and failed to respond to the court’s order despite multiple 2 || warnings); see also, e.g., Brandon v. Los Angeles Cty. Sheriff Dep't, 2013 WL 2423173, at *2 3 | (C.D. Cal. June 3, 2013) (recommending dismissal without prejudice for failure to prosecute 4 | where plaintiff failed to provide U.S. Marshal with information necessary for service, and failed 5 | torespond to multiple warnings from the court regarding this failure). 6 RECOMMENDATIONS 7 Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. Plaintiff’s clams be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule 9 of Civil Procedure 41(b); and 10 2. The Clerk of Court be directed to CLOSE this case. 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 13 days after being served with these findings and recommendations, any party may file written 14 | objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 17 || objections. The parties are advised that failure to file objections within the specified time may 18 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 19 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 20 || Dated: October 7, 2020 Aectl Aharon 22 KENDALL J. NE meek.2514 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28