(PS) Starchyk v. US Department of Homeland Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VLADISLAV VYACHESLAVOVICH No. 2:19-cv-1796 TLN DB PS STARCHYK, 12 13 Plaintiff, FINDINGS AND RECOMMENDATIONS 14 v. 15 U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND 16 IMMIGRATION SERVICES, 17 Defendants. 18 19 Plaintiff Vladislav Starchyk is proceeding in this action pro se and in forma pauperis. 20 This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 21 U.S.C. § 636(b)(1). On March 30, 2020, the undersigned granted plaintiff’s motion to proceed in 22 forma pauperis. (ECF No. 3.) That same day plaintiff was served with a letter that advised 23 plaintiff that Rule 4(m) of the Federal Rules of Civil Procedure provides that a defendant must be 24 dismissed if service of the summons and complaint is not accomplished on the defendant within 25 90 days after the complaint was filed. (ECF No. 5.) 26 More than 90 days passed, and the docket failed to reflect proof of service on, or the 27 appearance of, any defendant. Accordingly, on October 2, 2020, the undersigned issued an order 28 to show cause as to why this action should not be dismissed for lack of prosecution. (ECF No. 6.) 1 Plaintiff was ordered to show cause in writing within fourteen days. The fourteen-day period has 2 long passed, and plaintiff has not responded in any manner. 3 ANALYSIS 4 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 5 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 6 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 7 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 8 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 9 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 10 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 11 at 1260. 12 Failure of a party to comply with the any order of the court “may be grounds for 13 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 14 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 15 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 16 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 17 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 18 Rules. Id. 19 Here, plaintiff failed to comply with multiple orders of this court. Plaintiff was given 20 multiple opportunities to demonstrate an intent to prosecute this action and has failed to do so. In 21 this regard, plaintiff’s lack of prosecution of this case renders the imposition of monetary 22 sanctions futile. Moreover, the public interest in expeditious resolution of litigation, the court’s 23 need to manage its docket, and the risk of prejudice to the defendant all support the imposition of 24 the sanction of dismissal. Only the public policy favoring disposition on the merits counsels 25 against dismissal. However, plaintiff’s failure to prosecute the action in any way makes 26 disposition on the merits an impossibility. The undersigned will therefore recommend that this 27 action be dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply 28 with the Court’s orders. See Fed. R. Civ. P. 41(b). 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Plaintiff’s September 19, 2019 complaint (ECF No. 1) be dismissed without prejudice; 3 | and 4 2. This action be closed. 5 These findings and recommendations will be 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 thirty (30) days 7 | after being served with these findings and recommendations, plaintiff may file written objections 8 || withthe court. A document containing objections should be titled “Objections to Magistrate 9 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 10 || the specified time may, under certain circumstances, waive the right to appeal the District Court’s 11 | order. See Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 12 | Dated: December 2, 2020 13 14 15 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 | DLB:6 DB/orders/orders.pro se/starchyk1796.dlop.f&rs 18 19 20 21 22 23 24 25 26 27 28