(PC) Santos v. Ciolli ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLARD SANTOS, Case No. 1:20-cv-01638-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 A. CIOLLI, DISMISS ACTION FOR FAILURE TO PROSECUTE ACTION1 15 Defendant. 14-DAY DEADLINE 16 17 Plaintiff Willard Santos is a former federal prisoner proceeding pro se and in forma 18 pauperis (Doc. Nos. 1, 5) in this civil rights action. For the reasons set forth below, the 19 undersigned recommends the District Court dismiss this action without prejudice for Plaintiff’s 20 failure to prosecute this action. 21 BACKGROUND 22 Plaintiff Santos, a former state prisoner, is proceeding pro se on his initial civil rights 23 complaint under Bivens alleging a violation of his First Amendment rights. (Doc. No. 1, 24 “Complaint”). On May 4, 2023, the Court issued a screening order finding the Complaint failed 25 to state a claim because Bivens does not permit a remedy for violations of the First Amendment. 26 (Doc. No. 7 at 4-7). Plaintiff was given three options to exercise within twenty-one (21) days 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 1 from receipt of the May 4, 2023 Order: (1) file a First Amended Complaint (“FAC”); (2) file a 2 notice that he intends to stand on his initial complaint subject to the undersigned recommending 3 the district court dismiss for reasons stated in the May 4, 2023 Screening Order; or (3) file a 4 notice to voluntarily dismiss this action, without prejudice, under Federal Rule of Civil Procedure 5 41(a)(1) because no defendant had yet been served. (Id. at 7-8). The Court expressly warned 6 Plaintiff that if he “fails to timely respond to this Court Order or seek an extension of time to 7 comply” the undersigned “will recommend that the district court dismiss this case as a sanction 8 for Plaintiff’s failure to comply with a court order and prosecute this action.” (Id. at 8). The 9 twenty-one (21) day deadline has lapsed and Plaintiff has not elected any of the three options or 10 otherwise moved for an extension of time.2 (See generally docket). 11 APPLICABLE LAW AND ANALYSIS 12 A. Legal Standard 13 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 14 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 15 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 16 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 17 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of 18 the Court may be grounds for the imposition by the Court of any and all sanctions … within the 19 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 20 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 21 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 22 court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, 23 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 24 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 25 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 26 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 27 2 The undersigned further notes that as of the date of these Findings and Recommendations 41 days has 1 to comply with local rules). In determining whether to dismiss an action, the Court must 2 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 3 Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 4 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 5 sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 6 B. Analysis 7 The undersigned considers each of the above-stated factors and concludes dismissal is 8 warranted in this case. As to the first factor, the expeditious resolution of litigation is deemed to 9 be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 10 990-91 (9th Cir. 1999). Turning to the second factor, the Court’s need to efficiently manage its 11 docket cannot be overstated. This Court has “one of the heaviest caseloads in the nation,” and 12 due to unfilled judicial vacancies, which was further exacerbated by the Covid-19 pandemic, 13 operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing 14 Judicial Emergency in the Eastern District of California. The Court’s time is better spent on its 15 other matters than needlessly consumed managing a case with a recalcitrant litigant. The Court 16 cannot effectively manage its docket if a plaintiff ceases to litigate his case. 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, 291 F.3d at 4 644. Notably, the Court has already screened the Complaint and found it failed to state a 5 meritorious claim as plead. 6 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 7 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 8 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s May 4, 2023 Screening 9 Order expressly warned Plaintiff that his failure to comply with the Court’s order would result in 10 a recommendation for dismissal of this action. Thus, Plaintiff had adequate warning that 11 dismissal could result from his noncompliance. And the instant dismissal is a dismissal without 12 prejudice, which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth 13 factor. 14 After considering the factors set forth supra and binding case law, the undersigned 15 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 16 Accordingly, it is ORDERED: 17 The Clerk of the Court randomly assign this case to a District Judge. 18 It is further RECOMMENDED: 19 This action be DISMISSED without prejudice for Plaintiff’s failure to obey a court order 20 and/or failure to prosecute this action. 21 //// 22 NOTICE 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 25 of the date of service of these Findings and Recommendations, Plaintiff may file written 26 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 1 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 “| Dated: _ June 14, 2023 Wile. Lh fareh Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28