Despres v. McMillian ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LISA DESPRES, Case No. 1:23-cv-00525-HBK 12 Plaintiff, ORDER DIRECTING CLERK TO ASSIGN 13 v. CASE TO DISTRICT JUDGE 14 KENNETH MCMILLIAN, NICK FINDINGS AND RECOMMENDATION GRANT, 15 TO DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO Defendants. 16 PROSECUTE 17 14-DAY DEADLINE 18 19 Plaintiff Lisa Despres proceeds pro se and in forma pauperis in this civil action. (Doc. 20 Nos. 1, 4). For the reasons set forth below, the undersigned recommends the District Court 21 dismiss this action without prejudice for Plaintiff’s failure to prosecute this action and/or comply 22 with a court order. 23 BACKGROUND 24 On April 5, 2023, Plaintiff initiated this action by filing a pro se “Complaint for a Civil 25 Case” form. (Doc. No. 1, “Complaint’). On April 20, 2023, the undersigned issued a screening 26 order pursuant to 28 U.S.C. § 1915(e)(2)(B), finding the Complaint failed to establish this Court 27 had jurisdiction over Plaintiff’s claims. (Doc. No. 5, “Screening Order”). The undersigned afforded Plaintiff the opportunity to file an amended complaint, file a notice that she intends to 1 stand on her Complaint subject to the undersigning recommending the district court dismiss this 2 case for the reasons set forth in the Screening Order, or file a notice of voluntary dismissal. (Id. 3 at 4). The undersigned gave Plaintiff until May 22, 2023 to comply with the Court’s April 20, 4 2023 Screening Order. (Id. at 1, 5). Plaintiff was expressly warned that if she failed to timely 5 comply with the Screening Order or seek an extension of time to comply, the undersigned would 6 recommend the district court dismiss this action for Plaintiff’s failure to prosecute this action and 7 comply with the Screening Order. (Id. at 5, ¶2). Plaintiff has not responded to the Screening 8 Order and the time to do so has expired.1 See docket. 9 APPLICABLE LAW AND ANALYSIS 10 A. Legal Standard 11 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 12 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 13 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 14 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 15 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of 16 the Court may be grounds for the imposition by the Court of any and all sanctions … within the 17 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 18 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 19 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 20 court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, 21 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 22 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 23 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 24 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 25 to comply with local rules). 26 In determining whether to dismiss an action, the Court must consider several factors: (1) 27 1 Plaintiff is not incarcerated and not entitled to the mailbox rule. Nonetheless, the undersigned afforded 1 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 2 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 3 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 4 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 5 B. Analysis 6 The undersigned considers each of the above-stated factors and concludes dismissal is 7 warranted in this case. As to the first factor, the expeditious resolution of litigation is deemed to 8 be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 9 990-91 (9th Cir. 1999). 10 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 11 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to delay in 12 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates 13 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 14 Emergency in the Eastern District of California. This Court’s time is better spent on its other 15 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 16 effectively manage its docket when a litigate ceases to prosecute an action. Thus, the Court finds 17 that both the first and second factors weigh in favor of dismissal. 18 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 19 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 20 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor, risk of prejudice 21 to defendant, also weighs in favor of dismissal since a presumption of injury arises from the 22 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 23 524 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this 24 action, weighing in favor of dismissal for a risk of prejudice to defendants. 25 Finally, the fourth factor usually weighs against dismissal because public policy favors 26 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 27 “this factor lends little support to a party whose responsibility it is to move a case toward 1 here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th 2 Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures 3 by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan v. Galaza, 4 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of district court’s 5 involuntary dismissal with prejudice of habeas petition where petitioner failed to timely respond 6 to court order and noting “the weight of the docket-managing factor depends upon the size and 7 load of the docket, and those in the best position to know what that is are our beleaguered trial 8 judges.”). Further, the Screening Order noted the Complaint was deficient and failed to establish 9 that this Court had jurisdiction to consider Plaintiff’s claim. (Doc. No. 5). Thus, the Complaint 10 does not appear to be meritorious. 11 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 12 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 13 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. As noted, supra, the Court’s 14 Screening Order expressly warned Plaintiff the Court would recommend a dismissal of this action 15 if she failed to timely respond. Thus, Plaintiff had adequate warning that dismissal could result 16 from her noncompliance. And the instant dismissal is a dismissal without prejudice, which is a 17 lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 18 After considering the factors set forth supra and binding case law, the undersigned 19 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 20 Accordingly, it is ORDERED: 21 The Clerk of the Court randomly assign this case to a District Judge. 22 It is further RECOMMENDED: 23 This action be DISMISSED without prejudice for Plaintiff’s failure to prosecute this case 24 and/or obey a court order. 25 NOTICE 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 1 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 2 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 3 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 4 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 ° | Dated: _ June 1, 2023 Wihaw. Th. PoareA fackt 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28