- 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ENID MARIE FLORES, 1:19-cv-01509-NONE-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY MOTION FOR 90-DAY 13 v. EXTENSION OF TIME AND TO DISMISS CASE FOR FAILURE TO COMPLY 14 CALIFORNIA CORRECTIONAL WITH A COURT ORDER AND FAILURE WOMEN’S FACILITY, et al., TO PROSECUTE 15 Defendants. (Doc. 30) 16 14-DAY DEADLINE 17 18 Plaintiff has filed a motion requesting a fourth extension of time to respond to this Court’s 19 screening order, issued more than a year ago on June 25, 2020. (Doc. 28.) Her first request for a 20 90-day extension to file the amended complaint, was due to the fact she was defending a case “in 21 children’s court,” she was working on her divorce case. and she had been released from prison 22 (Doc. 23). Her second request was because, though she was still out of custody, she “fell into a 23 deep depression,” was “having difficulties concentrating on [her] cases” and had “a lot going on 24 in [her] life.” (Doc. 26) Her third request was based upon the fact that she was suffering medical 25 and dental problems and emotional stressors and was unable to file the amended complaint. (Doc. 26 28) Her current request repeats much of the same information. (Doc. 30) 27 In its previous grant of an extension of time, the Court advised: “Failure to file a first 28 1 amended complaint by [July 16, 2021] will result in a recommendation to dismiss this action for 2 failure to comply with a court order and failure to prosecute. The Court will grant no further of 3 extensions absent extraordinary cause.” (Doc. 29.) The Court does not discount or minimize that 4 the plaintiff’s physical and mental difficulties impede her from pursuing this litigation. However, 5 she has not been incarcerated for a year and, unlike prisoners, she is free to consult a lawyer if she 6 chooses. 7 Federal Rules of Civil Procedure 41(b) authorizes the Court to involuntarily dismiss a 8 case “[i]f the plaintiff fails to prosecute or to comply with [the rules of civil procedure] or a court 9 order.” Fed. R. Civ. P. 41(b). Although Rule 41(b) expressly allows the defendant to move to 10 dismiss the action or any claim, the Ninth Circuit has interpreted the rule to permit courts to 11 dismiss actions sua sponte for failure to prosecute or comply with the rules of procedure or a 12 court order. Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). 13 The Local Rules also provide that the failure to comply with the Federal Rules of Civil 14 Procedure, Local Rules, or other applicable law may be grounds for dismissal, judgment by 15 default, or any other appropriate sanction. L.R. 183(a). “Dismissal under a court’s inherent 16 powers is justified in extreme circumstances, . . . in response to abusive litigation practices, . . . 17 and to insure the orderly administration of justice and the integrity of the court’s orders.” Halaco 18 Eng’g Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988) (citations omitted). 19 In determining whether to dismiss an action as a sanction for failure to comply with a 20 court order or failure to prosecute, the Court must weigh the following factors: “(1) the public’s 21 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 22 risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and 23 (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 24 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 25 1992)). 26 The first and second factors favor dismissal. The public always has an interest in 27 expeditious resolution of litigation. Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 28 As to the second factor, “[i]t is incumbent upon th e Court to manage its docket without being 1 subject to routine noncompliance of litigants. . .” Pagtalunan, 291 F.3d at 642. 2 With respect to the third factor and the risk of prejudice, “pendency of a lawsuit is not 3 sufficiently prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 4 991). However, “delay inherently increases the risk that witnesses’ memories will fade and 5 evidence will become stale,” Pagtalunan, 291 F.3d at 643, and it is Plaintiff's failure to comply 6 with a court order and to prosecute this case that is causing delay. Over a year has passed since 7 the Court screened the complaint and first ordered Plaintiff to file an amended complaint. Thus, 8 the third factor weighs in favor of dismissal. 9 The fourth factor, which requires the Court to consider lesser sanctions, also favors 10 dismissal. Lesser sanctions, such as monetary sanctions or contempt, are of little use against a 11 pro se litigant proceeding in forma pauperis. The Court issued repeated orders to file an 12 amended complaint, granted extensions of time, and warned Plaintiff that the failure to comply 13 with a court order would result in a recommendation of dismissal. These less drastic alternatives 14 have not prompted Plaintiff to advance the litigation. Therefore, this factor also weighs in favor 15 of dismissal. 16 As to the fifth factor, “[p]ublic policy favors disposition of cases on their merits. Thus, 17 this factor weighs against dismissal.” Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of 18 El Monte, 138 F.3d 393, 399 (9th Cir.1998). 19 Considering all five factors, the Court concludes that dismissal of this action without 20 prejudice is warranted. See Ferdik, 963 F.2d at 1263 (concluding dismissal may be considered 21 appropriate where supported by three factors); see also Dreith v. Nu Image, Inc., 648 F.3d 779, 22 788 (9th Cir. 2011) (quoting Yourish, 191 F.3d at 990 (holding that a dismissal will be affirmed 23 where at least four factors support dismissal or where at least three factors strongly support 24 dismissal)). Accordingly, this case should be dismissed for Plaintiff’s failure to state a claim 25 upon which relief can be granted, prosecute this action, and comply with a court order. 26 Accordingly, for the foregoing reasons, it is RECOMMENDED that the Court DENY 27 Plaintiff’s request for another 90-day extension of time and DISMISS this action without 28 1 prejudice. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 4 of the date of service of these Findings and Recommendations, Plaintiff may file written 5 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 6 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 7 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 8 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. 11 Dated: July 22, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 1:19-cv-01509
Filed Date: 7/22/2021
Precedential Status: Precedential
Modified Date: 6/19/2024