(PS) Tanksley v. Debbie ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MOODY WOODROW TANKSLEY, No. 2:20–cv–1875–JAM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. (ECF No. 4) 14 DEBBIE, et al., 15 Defendants. 16 17 Plaintiff, proceeding pro se, filed a complaint against defendants alleging a violation of 18 42 U.S.C. § 1983 for being refused medical treatment by a private health care facility; he also 19 requested leave to proceed in forma pauperis. (See ECF Nos. 1, 2.) The Court granted Plaintiff’s 20 IFP request and dismissed the complaint for lack of subject matter jurisdiction. (ECF No. 3.) 21 Plaintiff was given 28 days to amend the complaint and was warned that a failure to do so by the 22 required deadline “may result in dismissal of the action with prejudice pursuant to Federal Rule of 23 Civil Procedure 41(b).” (Id. at 3.) When that deadline passed with no filings from plaintiff, the 24 Court on October 30, 2020, issued an order to show cause why this action should not be 25 dismissed with prejudice under Rule 41(b) for failure to prosecute this case, and failure to comply 26 with the court’s prior order. (ECF No. 4.) Plaintiff was given another 14 days to show cause. 27 (Id.) More than 14 days have passed without a response from Plaintiff. Accordingly, the 28 undersigned recommends dismissing this case with prejudice under Rule 41(b). 1 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 2 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 3 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 4 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 5 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 6 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 7 under Rule 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to 8 follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 9 F.2d 1258, 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil 10 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 11 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 12 curiam) (stating that district courts have inherent power to control their dockets and may impose 13 sanctions including dismissal or default). This court’s Local Rules are in accord. See E.D. Cal. 14 Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any order of 15 the Court may be grounds for imposition by the Court of any and all sanctions authorized by 16 statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) 17 (providing that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the 18 court’s Local Rules, and other applicable law may support, among other things, dismissal of that 19 party’s action). 20 A court must weigh five factors in determining whether to dismiss a case for failure to 21 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 22 rules. See Ferdik, 963 F.2d at 1260. These are: 23 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 24 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 25 (5) the availability of less drastic alternatives. 26 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 27 Here, the first two factors weigh in favor of dismissal, because this case has already been 28 delayed by Plaintiff’s failure to take the steps necessary to move this case forward. The third 1 | factor also favors dismissal, because, at a minimum, Defendants have been deprived of an 2 || opportunity to be promptly notified of the lawsuit and prepare their defense. With the passage of 3 | time, memories fade and evidence becomes stale. The fifth factor also favors dismissal because 4 | the Court has already attempted less drastic alternatives. Specifically, after granting Plaintiff 5 | leave to proceed without paying the filing fee, the Court informed Plaintiff of the complaint’s 6 | deficiencies and granted him leave to amend. However, Plaintiff has been incommunicado since 7 | filing the complaint, leaving the court with little alternative but to recommend dismissal. Given 8 | Plaintiffs request to proceed IFP, it is unlikely that monetary sanctions would be effective. 9 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 10 | factor is outweighed by the other Ferdik factors. Indeed, it is Plaintiff's own failure to prosecute 11 || the case and comply with the rules that precludes a resolution on the merits. Therefore, after 12 | carefully evaluating the Ferdik factors, the Court concludes that dismissal is appropriate. 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiff's claims be DISMISSED with prejudice pursuant to Federal Rule of Civil 15 Procedure 41(b); and 16 2. The Clerk of Court be directed to close this case. 17 These findings and recommendations are submitted to the United States District Judge 18 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 19 || days after being served with these findings and recommendations, any party may file written 20 | objections with the court and serve a copy on all parties. Such a document should be captioned 21 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 22 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 23 | objections. The parties are advised that failure to file objections within the specified time may 24 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 25 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 26 || Dated: November 18, 2020 tank.1875 Frees Aharon 28 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE