(PC) Torres v. Kamen ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MIGUEL TORRES, Case No. 1:21-cv-01503-ADA-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DISMISS THIS ACTION FOR PLAINTIFF’S FAILURE TO OBEY 14 G. KAMEN, et al., COURT ORDERS AND FAILURE TO PROSECUTE 15 Defendants. 14-DAY OBJECTION PERIOD 16 17 18 19 Plaintiff Miguel Torres is proceeding pro se and in forma pauperis in this civil rights 20 action pursuant to 42 U.S.C. § 1983.1 21 I. INTRODUCTION 22 On January 26, 2023, the Court issued its First Screening Order. (Doc. 15.) The Court 23 found Plaintiff had stated cognizable deliberate indifference to serious medical needs claims 24 against Defendants Kamen, Castro, and Spaeth, but that Plaintiff had failed to state any other 25 cognizable claim for relief. (Id. at 10-13.) As a result, Plaintiff was directed to do one of the 26 following: (1) notify the Court in writing that he does not wish to file a first amended complaint 27 and he is willing to proceed only on his claims for deliberate indifference to serious medical 1 needs against Defendants Kamen, Castro, and Spaeth; (2) file a first amended complaint curing 2 the deficiencies in his pleading; or (3) file a notice of voluntary dismissal. (Id. at 13-14.) Despite 3 being given 21 days from the date of service of the order within which to respond to the Court’s 4 screening order (id. at 14), Plaintiff has failed to do so. 5 II. DISCUSSION 6 A. Legal Standard 7 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 8 “[f]ailure of counsel or of a party to comply with … any order of the Court may be grounds for 9 the imposition by the Court of any and all sanctions … within the inherent power of the Court.” 10 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 11 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 12 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 13 party’s failure to prosecute, obey a court order, or comply with local rules. See, e.g., Ferdik v. 14 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a court 15 order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) 16 (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 17 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 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. Carey v. King, 856 F.2d 22 1439, 1440 (9th Cir. 1988). 23 B. Analysis 24 Here, Plaintiff has failed to file written notice indicating he does not wish to file an 25 amended complaint and wishes to proceed only on the cognizable deliberate indifference to 26 serious medical needs claims against Defendants Kamen, Castro, and Spaeth. Nor has Plaintiff 27 filed either a first amended complaint or a notice of voluntary dismissal. Therefore, Plaintiff has 1 effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both 2 the first and second factors—the public’s interest in expeditious resolution of litigation and the 3 Court’s need to manage its docket—weigh in favor of dismissal. Carey, 856 F.2d at 1440. 4 The third factor weighs in favor of dismissal since a presumption of injury arises from the 5 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 6 (9th Cir. 1976). Here, the Court’s First Screening Order issued January 26, 2023. (Doc. 15.) The 7 Court determined Plaintiff had plausibly alleged deliberate indifference to serious medical needs 8 claims against Defendants Kamen, Castro, and Spaeth, but had failed to state any other 9 cognizable claim. (Id. at 10-13.) Plaintiff was given three options and directed to choose one of 10 the following: (1) to notify the Court in writing that he does not wish to file a first amended 11 complaint and he is willing to proceed only on his claims for deliberate indifference to serious 12 medical need against Defendants Kamen, Castro, and Spaeth; (2) to file a first amended 13 complaint curing the deficiencies in his pleading; or (3) to file a notice of voluntary dismissal. (Id. 14 13-14.) Plaintiff has failed to respond in any way; he has not filed written notice, nor has he filed 15 an amended complaint or a notice of voluntary dismissal. Plaintiff’s inaction amounts to an 16 unreasonable delay in prosecuting this action resulting in a presumption of injury. Therefore, the 17 third factor—a risk of prejudice to defendants—also weighs in favor of dismissal. Carey, 856 18 F.2d at 1440. 19 The fourth factor usually weighs against dismissal because public policy favors 20 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 21 “this factor lends little support to a party whose responsibility it is to move a case toward 22 disposition on the merits but whose conduct impedes progress in that direction.” In re 23 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) 24 (citation omitted). By failing to file either written notice with the Court, or an amended 25 complaint, or a notice of voluntary dismissal, Plaintiff is not moving this case forward and is 26 impeding its progress. Thus, the fourth factor—the public policy favoring disposition of cases on 27 their merits—weighs in favor of dismissal. Carey, 856 F.2d at 1440. 1 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 2 | dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. 3 | The Court’s January 26, 2023 First Screening Order expressly warned Plaintiff as follows: “If 4 | Plaintiff fails to comply with this order, the Court will recommend that this action be 5 | dismissed, without prejudice, for failure to obey a court order and for failure to prosecute.” 6 | (Doc. 15 at 14-15; see also Doc. 3 at 1 [First Informational Order in Prisoner/Civil Detainee Civil 7 | Rights Case].) Thus, Plaintiff had adequate warning that dismissal could result from his 8 | noncompliance. Therefore, the fifth factor—the availability of less drastic sanctions—also weighs 9 | in favor of dismissal. Carey, 856 F.2d at 1440. 10 IW. CONCLUSION AND RECOMMENDATIONS 11 For the reasons given above, the undersigned RECOMMENDS that this action be 12 | DISMISSED without prejudice for Plaintiff's failure to obey court orders and failure to prosecute. 13 These Findings and Recommendations will be submitted to the United States District 14 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 15 | of the date of service of these Findings and Recommendations, Plaintiff may file written 16 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 17 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 18 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 19 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 | □□ □□ SO ORDERED. | Dated: February 27, 2023 | Wr bo 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28