(PC) Childers v. Fabritio ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN LEE CHILDERS, No. 1:18-cv-01241-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED WITHOUT 13 v. PREJUDICE1 14 ELAINE ROSA, psychologist, OBJECTIONS DUE IN FOURTEEN DAYS2 15 Defendant. 16 17 This matter comes before the court upon initial review of the file, which was reassigned to 18 the undersigned on November 17, 2020. (Doc. No. 18). As more fully set forth below, the 19 undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to 20 effectuate service and prosecute this action. 21 I. FACTS AND BACKGROUND 22 Plaintiff Allen Lee Childers, while a prisoner, initiated this pro se action by filing a civil 23 rights complaint filed under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff was granted leave to 24 proceed in forma pauperis. (Doc. No. 7). On May 20, 2019, the court issued findings and 25 recommendations concluding plaintiff’s complaint stated cognizable claims for medical deliberate 26 indifference and conditions of confinement against defendant Elaine Rosa. (Doc. No. 12). On 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca. 2019). 28 2 Because plaintiff is no longer incarcerated, he is afforded the statutory 14-day period to object. 1 June 3, 2019, plaintiff was released from prison and filed a notice of change of address. (Doc. 2 No. 13). The findings and recommendations were fully adopted on August 13, 2019. (Doc. No. 3 14). On August 20, 2019, the court ordered plaintiff to complete service forms within thirty (30) 4 days so the court direct the United States Marshal to effectuate service upon the defendant. (Doc. 5 No. 15). The order cautioned plaintiff that his failure to timely comply could result in a 6 dismissal of this action. (Id. at ¶ 5). On June 12, 2020, after plaintiff failed to timely return 7 completed service forms, the court issued an order to show cause “why this case should not be 8 dismissed for his failure to prosecute and failure to comply with a court order.” (Doc. No. 17). 9 The court’s show cause order was returned as undeliverable on July 9, 2020. The court’s order 10 reassigning this case to the undersigned was also returned as undeliverable on December 14, 11 2020. On December 4, 2020, the court redirected the clerk to re-serve the August 20, 2019 show 12 cause order and order reassigning this case to the undersigned. (See docket entry dated December 13 4, 2020). As of the date of these findings and recommendations, plaintiff has not returned 14 completed service forms and has not responded to the order to show cause, despite it being resent 15 on December 4, 2020 and not returned as undeliverable. 16 II. APPLICABLE LAW 17 If a defendant is not served within ninety (90) days after a complaint is filed, the court 18 must, after notice to the plaintiff, dismiss the action without prejudice. Fed. R. Civ. P. 4(m) 19 (emphasis added). Similarly, Rule 41(b) permits the court to involuntarily dismiss an action 20 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 21 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 22 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 23 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 24 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 25 Rule 110 also permits the court to impose sanctions on a party who fails to comply with the 26 court’s Rules or any order of court. 27 Although involuntary dismissal is a harsh penalty, it “is incumbent upon the Court to 28 manage its docket without being subject to routine noncompliance of litigants.” Pagtalunan v. 1 Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, 2 the court must consider: (1) the public interest in expeditious resolution of litigation; (2) the 3 court’s need to manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring 4 disposition on the merits; (5) the availability of less drastic sanctions. See Applied Underwriters, 5 913 F.3d at 889 (noting court that these five factors “must” be analyzed before a Rule 41 6 involuntarily dismissal) (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th 7 Cir. 1987) (reviewing five factors and independently reviewing the record because district court 8 did not make finding as to each); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th 9 Cir. 2000) (listing the same, but noting the court need not make explicit findings as to each) 10 (emphasis added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of 11 pro se 1983 action when plaintiff did not amend caption to remove “et al” as the court directed 12 and reiterating that an explicit finding of each factor is not required by the district court). 13 III. ANALYSIS 14 Plaintiff failed to comply with the Court’s August 20, 2019 order directing him to return 15 completed service so that service could be effectuated in a timely fashion as mandated by Fed. R. 16 Civ. P. 4. After the court’s order to show cause was returned as undeliverable on July 9, 2020, 17 the court directed the clerk to re-serve the court’s June 12, 2020 show cause order on plaintiff on 18 December 4, 2020 and reset the deadline for thirty (30) days. (See docket entry dated December 19 4, 2020). Thus, plaintiff had a second opportunity to comply to show cause why the case should 20 not be dismissed under Fed. R. Civ. P. Rule 4(m) but failed to respond. Thus, the undersigned 21 finds the case subject to dismissal under Fed. R. Civ. P. 4(m). 22 Alternatively, the undersigned considers each of the above-stated factors and concludes 23 dismissal is warranted in this case under Fed. R. Civ. P. 4(b). The expeditious resolution of 24 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 25 Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). Turning to the second factor, the court’s need to 26 efficiently manage its docket cannot be overstated. This court has “one of the heaviest caseloads 27 in the nation,” and due to unfilled judicial vacancies, which is further exacerbated by the Covid- 28 19 pandemic, operates under a declared judicial emergency. See Amended Standing Order in 1 Light of Ongoing Judicial Emergency in the Eastern District of California. The court’s time is 2 better spent on its other matters than needlessly consumed managing a case with a recalcitrant 3 litigant. Indeed, “trial courts do not have time to waste on multiple failures by aspiring litigants 4 to follow the rules and requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., 5 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition 6 where petitioner failed to timely respond to court order and noting “the weight of the docket- 7 managing factor depends upon the size and load of the docket, and those in the best position to 8 know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk 9 that evidence will become stale or witnesses' memories will fade or be unavailable and can 10 prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 11 57 (1968). The court has already attempted a less drastic option by issuing a second order to 12 show cause, to which plaintiff failed to respond. Additionally, the instant dismissal is a dismissal 13 without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby addressing 14 the fifth factor. 15 Plaintiff failed to comply with the court’s August 20, 2019 order to return the completed 16 service. (Doc. No. 15). Plaintiff has not served defendant despite having over 18 months to do so 17 and being warned that failure to do would be cause for dismissal. After considering the factors 18 set forth supra and binding case law, the undersigned alternatively recommends dismissal, 19 without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 20 Accordingly, it is RECOMMENDED: 21 This case be dismissed without prejudice under Fed. R. Civ. P. 4(m) and/or Fed. R. Civ. P. 22 41(b) and/or Local Rule 110. 23 NOTICE TO PARTIES 24 These findings and recommendations will be submitted to the United States district judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 26 (14) days after being served with these findings and recommendations, a party may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Parties are advised that failure to file objections within the 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. ated: April 28, 2021 Mle fareh Zack 6 HELENA M. BARCH-KUCHTA 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28