(PC) Gaeta v. Sherman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS GAETA, Case No. 1:20-cv-01630-NONE-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITHOUT PREJUDICE, 13 v. FOR FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE 14 SHERMAN, et al., (ECF Nos. 11, 13) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 18 I. Background 19 Plaintiff Luis Gaeta (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 20 action under 42 U.S.C. § 1983. This action was removed to this Court on November 12, 2020. 21 (ECF No. 1.) 22 On August 2, 2021, the Court screened the complaint. (ECF No. 11.) Plaintiff was 23 directed to either file a first amended complaint or notify the Court of his willingness to proceed 24 only on the cognizable claim identified by the Court. Plaintiff was expressly warned that his 25 failure to comply with the Court’s order would result in a recommendation of dismissal of this 26 action, without prejudice, for failure to obey a court order and for failure to prosecute. (Id. at 14.) 27 Following an extension of time, Plaintiff’s first amended complaint or notification was due on or 28 before October 25, 2021. (ECF No. 13.) Plaintiff was again warned that his failure to comply 1 with the Court’s order would result in a recommendation of dismissal of this action, without 2 prejudice, for failure to obey a court order and for failure to prosecute. (Id. at 3.) 3 The deadline has expired, and Plaintiff has failed to respond to the Court’s orders or 4 otherwise communicate with the Court. 5 II. Failure to Prosecute and Failure to Obey a Court Order 6 A. Legal Standard 7 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 8 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 9 within the inherent power of the Court.” District courts have the inherent power to control their 10 dockets and “[i]n the exercise of that power they may impose sanctions including, where 11 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 12 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 13 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 14 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 15 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 16 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 17 (dismissal for failure to comply with court order). 18 In determining whether to dismiss an action, the Court must consider several factors: 19 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 20 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 21 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 22 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 23 B. Discussion 24 Here, Plaintiff’s first amended complaint or notice that he wishes to proceed on the claims 25 found cognizable by the Court is overdue and he has failed to comply with the Court’s orders. 26 The Court cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the 27 Court finds that both the first and second factors weigh in favor of dismissal. 28 /// 1 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 2 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 3 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 4 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 5 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 6 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 7 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 8 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 9 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 10 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 11 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s August 2, 2021 screening 12 order expressly warned Plaintiff that his failure to comply with the Court’s order would result in 13 dismissal of this action for failure to obey a court order and for failure to prosecute. (ECF No. 11, 14 p. 14.) The Court’s September 21, 2021 order granting Plaintiff’s motion for an extension of time 15 contained the same warning. (ECF No. 13, p. 3.) Thus, Plaintiff had adequate warning that 16 dismissal could result from his noncompliance. 17 Additionally, at this stage in the proceedings there is little available to the Court that 18 would constitute a satisfactory lesser sanction while protecting the Court from further 19 unnecessary expenditure of its scarce resources. Plaintiff has not paid the filing fee, or would be 20 proceeding in forma pauperis in this action, apparently making monetary sanctions of little use, 21 and the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has 22 ceased litigating his case. 23 III. Conclusion and Recommendation 24 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY 25 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey Court orders 26 and for Plaintiff’s failure to prosecute this action. 27 These Findings and Recommendation will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 1 (14) days after being served with these Findings and Recommendation, the parties may file 2 written objections with the Court. The document should be captioned “Objections to Magistrate 3 Judge’s Findings and Recommendation.” The parties are advised that failure to file objections 4 within the specified time may result in the waiver of the “right to challenge the magistrate’s 5 factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 6 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 IT IS SO ORDERED. 8 9 Dated: November 9, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28