(PS) Young v. Winn ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL CHRISTOPHER YOUNG, No. 2:20-cv-1472 TLN DB PS 12 Plaintiff, 13 FINDINGS AND RECOMMENDATIONS v. 14 JUDGE JOHN WINN, ROBIN LESLIE 15 PEARL, 16 Defendants. 17 18 Plaintiff Daniel Christopher Young is proceeding in this action pro se. This matter was 19 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 20 Plaintiff commenced this action on July 22, 2020, by filing a complaint and paying the required 21 filing fee. (ECF No. 1.) On July 23, 2020, summons for the defendants were issued. (ECF No. 22 2.) That same day plaintiff was served with a letter that advised plaintiff that Rule 4(m) of the 23 Federal Rules of Civil Procedure provides that a defendant must be dismissed if service of the 24 summons and complaint is not accomplished on the defendant within 90 days after the complaint 25 was filed. (ECF No. 3.) More than 90 days passed, plaintiff did not file proof of service on any 26 defendant nor did any defendant appear in this action. 27 //// 28 //// 1 Accordingly, on December 4, 2020, the court issued an order to show cause, ordering 2 plaintiff to show cause in writing within fourteen days as to why this action should not be 3 dismissed for lack of prosecution. (ECF No. 4.) Plaintiff was warned that the failure to timely 4 comply with that order could result in a recommendation that this case be dismissed. (Id. at 2.) 5 Nonetheless, the time provided plaintiff has expired and plaintiff has not responded to the 6 December 4, 2020 order. 7 ANALYSIS 8 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 9 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 10 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 11 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 12 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 13 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 14 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 15 at 1260. 16 Failure of a party to comply with the any order of the court “may be grounds for 17 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 18 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 19 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 20 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 21 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 22 Rules. Id. 23 Here, it appears plaintiff has failed to timely serve a defendant. And plaintiff failed to 24 respond to the December 4, 2020 order. Plaintiff was warned that the failure to file a written 25 response to that order could result in a recommendation that this matter be dismissed. In this 26 regard, plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions 27 futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to 28 manage its docket, and the risk of prejudice to the defendant all support the imposition of the 1 | sanction of dismissal. Only the public policy favoring disposition on the merits counsels against 2 | dismissal. However, plaintiffs failure to prosecute the action in any way makes disposition on 3 | the merits an impossibility. The undersigned will therefore recommend that this action be 4 | dismissed due to plaintiff’s failure to prosecute as well as plaintiffs failure to comply with the 5 | court’s orders. See Fed. R. Civ. P. 41(b). 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. Plaintiff's July 22, 2020 complaint (ECF No. 1) be dismissed without prejudice; and 8 2. This action be closed. 9 These findings and recommendations will be submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 11 | after being served with these findings and recommendations, plaintiff may file written objections 12 | with the court. A document containing objections should be titled “Objections to Magistrate 13 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 14 | the specified time may, under certain circumstances, waive the right to appeal the District Court’s 15 | order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | Dated: March 23, 2021 17 18 19 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 20 21 | pDLB:6 DB/orders/orders.pro se/young1472.dlop.f&rs 23 24 25 26 27 28