(PC) Dannenberg v. Price ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC DANNENBERG, Case No. 1:20-cv-00128-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT 13 v. JUDGE TO THIS ACTION 14 BRANDON PRICE, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION 15 Defendants. FOR FAILURE TO COMPLY AND FAILURE TO PROSECUTE 16 (ECF No. 10) 17 OBJECTIONS DUE WITHIN THIRTY 18 DAYS 19 20 Eric Dannenberg (“Plaintiff”), a civil detainee, is appearing pro se and in forma pauperis 21 in this civil rights action pursuant to 42 U.S.C. § 1983. On July 20, 2020, an order issued 22 requiring Plaintiff to either file an amended complaint or a notice that he was willing to 23 proceed on the claims found to be cognizable in the complaint within thirty days. (ECF No. 24 10.) More than thirty days have passed and Plaintiff has not filed an amended complaint, filed 25 a notice that he wishes to proceed on the cognizable claim, nor otherwise responded to the 26 Court’s order. 27 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all 1 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 2 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 3 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 4 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 5 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 6 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 7 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 8 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an 9 amended complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for 10 failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 11 Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure 12 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 13 (dismissal for lack of prosecution and failure to comply with local rules). Where a plaintiff 14 fails to file an amended complaint after being provided with leave to amend to cure the failure 15 to state a claim, a district court may dismiss the entire action. Lira v. Herrera, 427 F.3d 1164, 16 1169 (9th Cir. 2005). 17 In determining whether to dismiss an action for failure to comply with a pretrial order, 18 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 19 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 20 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 21 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 22 1226 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th 23 Cir. 1986). These factors guide a court in deciding what to do, and are not conditions that must 24 be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 25 Litigation, 460 F.3d at 1226. 26 In this instance the public’s interest in expeditious resolution of the litigation and the 27 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine 1 complaint to cure the deficiencies that were identified in his complaint or notify the Court that 2 he was willing to proceed on the cognizable claims within thirty days of July 20, 2020. 3 Plaintiff has been provided with the legal standards that would apply to his claims and the 4 opportunity to file an amended complaint. Plaintiff has neither filed an amended complaint, 5 notified the Court that he is willing to proceed on the cognizable claims, nor otherwise 6 responded to the Court’s July 20, 2020 order. Plaintiff’s failure to comply with the orders of 7 the Court hinders the Court’s ability to move this action towards disposition, and indicates that 8 Plaintiff does not intend to diligently litigate this action. 9 Since it appears that Plaintiff does not intend to diligently litigate this action there arises a 10 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 11 1452-53 (9th Cir. 1994). Since, Plaintiff has not responded to the Court’s order, the risk of 12 prejudice to the defendants also weighs in favor of dismissal. 13 The public policy in favor of deciding cases on their merits is greatly outweighed by the 14 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This 15 action can proceed no further without Plaintiff’s cooperation and compliance with the order at 16 issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. In this 17 instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s 18 orders. 19 Finally, since Plaintiff is proceeding in this action in forma pauperis monetary sanctions 20 would be ineffective to address the failure to comply. A court’s warning to a party that their 21 failure to obey the court’s order will result in dismissal satisfies the “consideration of 22 alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 23 F.2d at 1424. The Court’s July 20, 2020 order requiring Plaintiff to file an amended complaint 24 or notify the Court that he would proceed on the cognizable claims expressly stated: “Plaintiff 25 is warned that if he fails to comply with this order, the Court will recommend to the district 26 judge that this action be dismissed for the failure to prosecute and the failure to comply with a 27 court order.” (ECF No. 10 at 25:3-5 (emphasis in original).) Thus, Plaintiff had adequate wOAOe 4:OU UVM ECON PAD MMU Lee POO I EN AY ST Mt order. 2 Accordingly, it is HEREBY ORDERED that the Clerk of Court is directed to randomly 3 assign a District Judge to this action. 4 Further, it is HEREBY RECOMMENDED that this action be DISMISSED for Plaintiffs 5 | failure to comply and failure to prosecute. 6 This findings and recommendations is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty 8 (30) days of service of this recommendation, Plaintiff may file written objections to this findings and recommendations with the court. Such a document should be captioned 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will 11 | review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 13 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 14] 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 IT IS SO ORDERED. OF. ee 17 | Dated: _September 1, 2020 _ ef UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28