(PC) Rios v. Spearman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISRAEL RIOS, Case No. 1:19-cv-1009-ADA-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 13 v. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS1 14 DR. CHINYERE NYENKE FOURTEEN-DAY OBJECTION PERIOD 15 Defendant. 16 17 18 This matter comes before the Court upon periodic review. As more fully set forth below, 19 the undersigned recommends this case be dismissed without prejudice due to Plaintiff’s failure to 20 prosecute this action and timely comply with the Court’s orders. 21 I. FACTS AND BACKGROUND 22 Plaintiff Rios, a state prisoner, is proceeding pro se on his second amended civil rights 23 complaint under 42 U.S.C. § 1983. (Doc. No. 26, “SAC”). Plaintiff’s SAC, filed on August 13, 24 2021, alleges Defendant Dr. Chinyere Nyenke was deliberately indifferent to Plaintiff’s medical 25 conditions in violation of the Eighth Amendment. (Id.). On July 28, 2022, the undersigned 26 screened Plaintiff’s SAC and found that it failed to state an Eighth Amendment claim for 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 deliberate indifference to Plaintiff’s medical condition. (Doc. No. 30). Plaintiff was given three 2 options to exercise within thirty (30) days from July 28, 2022: (1) file a Third Amended 3 Complaint (“TAC”); (2) file a notice that he intends to stand on his SAC subject to the 4 undersigned recommending the district court dismiss for reasons stated in the July 28, 2022 5 Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, under 6 Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 6-7). 7 The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order, i.e., 8 fails to elect and notify the Court of any of the three options, the undersigned will recommend 9 that the district court dismiss this case as a sanction for Plaintiff’s failure to comply with a court 10 order and for failing to prosecute this action after its determination that the complaint failed to 11 state a claim, which will count as strike under the PLRA.” (Id. at 7). The thirty-day deadline has 12 lapsed and Plaintiff has not elected any of the three options or otherwise moved for an extension 13 of time. (See generally docket). 14 II. APPLICABLE LAW 15 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 16 when a litigant fails to prosecute an action or fails to comply with a court order. See Fed. R. Civ. 17 P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations 18 omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 19 (“[T]he consensus among our sister circuits, with which we agree, is that courts may dismiss 20 under Rule 41(b) sua sponte, at least under certain circumstances.”). Local Rule 110 similarly 21 permits the court to impose sanctions on a party who fails to comply with any order of the court. 22 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 23 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 24 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 25 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 26 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 27 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 28 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 1 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 2 five factors and independently reviewing the record because district court did not make finding as 3 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 4 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 5 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 6 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 7 reiterating that an explicit finding of each factor is not required by the district court). 8 III. ANALYSIS 9 The undersigned considers each of the above-stated factors and concludes dismissing this 10 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 11 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 12 Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 13 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 14 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 15 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 16 Emergency in the Eastern District of California. The Court’s time is better spent on its other 17 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 18 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 19 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of 20 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 21 timely respond to court order and noting “the weight of the docket-managing factor depends upon 22 the size and load of the docket, and those in the best position to know what that is are our 23 beleaguered trial judges.”). Delays have the inevitable and inherent risk that evidence will 24 become stale or witnesses' memories will fade or be unavailable and can prejudice a defendant, 25 thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Attempting a 26 less drastic action would be futile because Rios was provided ample time to, at the minimum, 27 notify the court which of the three options from the July 28, 2022 Screening Order he would elect 28 and he has failed to do even the bare minimum. (See docket). Finally, the instant dismissal is a 1 | dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 2 | addressing the fifth factor. 3 Considering these factors and those set forth supra, as well as binding case law, the 4 | undersigned recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local 5 | Rule 110. 6 Accordingly, it is RECOMMENDED: 7 This case be dismissed without prejudice for Plaintiffs failure to prosecute this action and 8 | the Clerk be directed to terminate any motions and close this case. 9 NOTICE TO PARTIES 10 These findings and recommendations will be submitted to the United States district judge 11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 12 | days after being served with these findings and recommendations, a party may file written 13 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 | Findings and Recommendations.” Parties are advised that failure to file objections within the 15 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 16 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 | Dated: _ September 15, 2022 Mihaw. Wh. foareh Zaskth 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28