(PS) Van den Heuvel v. Sooth ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEAN MARC VAN DEN HEUVEL, No. 2:23–cv–361–TLN–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 AMANDA SOOTH, 15 Defendant. 16 17 Plaintiff, proceeding without the aid of counsel, filed a complaint against defendant Sooth 18 and requested leave to proceed without prepayment of the filing fee (“IFP”).1 (See ECF Nos. 1, 19 2.) The court granted plaintiff’s IFP request and granted plaintiff leave to amend, finding the 20 complaint difficult to discern and instructing plaintiff to clarify his facts and claims. (ECF No. 3.) 21 Plaintiff was given 28 days to amend and was warned that failure to do so by the required 22 deadline could result in sanctions, including “dismissal of the action with prejudice pursuant to 23 Federal Rule of Civil Procedure 41(b).” (Id. at 5.) This deadline has passed without any response 24 from plaintiff. Given the mostly frivolous nature of the original complaint and plaintiff’s failure 25 to respond to the court’s order to amend, the undersigned recommends dismissing this case with 26 prejudice under Rule 41(b). 27 28 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(21). 1 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 2 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 3 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 4 local rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 5 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 6 any order of the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th 7 Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets 8 and may impose sanctions including dismissal or default). This court’s Local Rules are in accord. 9 See E.D. Cal. Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or 10 with any order of the Court may be grounds for imposition by the Court of any and all sanctions 11 authorized by statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 12 183(a) (providing that a pro se party’s failure to comply with the Federal Rules of Civil 13 Procedure, the court’s Local Rules, and other applicable law may support, among other things, 14 dismissal of that party’s action); see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per 15 curiam) (“Failure to follow a district court’s local rules is a proper ground for dismissal.”). 16 A court must weigh five factors in determining whether to dismiss a case for failure to 17 prosecute or failure to comply with a court order or local rules, which are: 18 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 19 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 20 (5) the availability of less drastic alternatives. 21 Ferdik, 963 F.2d at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 22 Here, the first two factors weigh in favor of dismissal, because this case has been delayed 23 by plaintiff’s failure to take the steps necessary to move it forward. The third factor also favors 24 dismissal, because, at a minimum, defendant has been deprived of an opportunity to be promptly 25 notified of the lawsuit and prepare her defense. With the passage of time, memories fade and 26 evidence becomes stale. The fifth factor also favors dismissal because the court has already 27 attempted less drastic alternatives. Specifically, after granting plaintiff leave to proceed without 28 paying the filing fee, the court informed plaintiff of the complaint’s deficiencies and granted 1 | leave to amend. However, plaintiff filed nothing since the initial complaint, leaving the court 2 || with little alternative but to recommend dismissal. Given plaintiff's request to proceed IFP, it is 3 || unlikely that monetary sanctions would be effective. Additionally, given that it appears the scope 4 || of plaintiffs action concerns his attempt to sue the clerk of El Dorado Superior Court for alleged 5 || civil rights violations in relation to plaintiff's prior criminal proceedings, it is likely this action is 6 | frivolous in nature and unable to be cured by amendment.” See Ashelman v. Pope, 793 F.2d 7 || 1072, 1075 (9th Cir. 1986) (“Judges and those performing judge-like functions are absolutely 8 | immune from damage liability for acts performed in their official capacities.”’). 9 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 10 || factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff's own failure to prosecute 11 || the case and comply with the rules that precludes a resolution on the merits. Therefore, after 12 | carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate. 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiff's claims be DISMISSED with prejudice; and 15 2. The Clerk of Court be directed to close this case. 16 || These findings and recommendations are submitted to the United States District Judge assigned to 17 || the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after 18 || being served with these findings and recommendations, plaintiff may file written objections with 19 || the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 20 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time 21 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 22 | (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 23 | Dated: June 1, 2023 VanD.361 Frees Aharon 25 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 Plaintiff has filed multiple actions in this court that border on frivolity. Plaintiff is warned that 27 || continued abuse of the court’s process could result in the entry of a vexatious litigant order against him, which would restrict his ability to file cases in this court. Plaintiff is likely aware of 28 | this mechanism, as other California courts have entered similar orders against him.