(PC) Robles v. Johnson ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANTONIO G. ROBLES, Case No. 1:22-cv-00620-ADA-CDB (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 12 v. STATE A CLAIM, FAILURE TO COMPLY WITH A COURT ORDER, AND FAILURE 13 STEVEN JOHNSON, et al., TO PROSECUTE 14 Defendants. (Docs. 7, 8) 15 FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff Antonio G. Robles is a state prisoner proceeding pro se and in forma pauperis in 18 this civil action filed under 42 U.S.C. § 1983. 19 On April 26, 2023, the Court issued a screening order finding that Plaintiff’s complaint 20 fails to state a cognizable Eighth Amendment claim or state law claims for medical malpractice 21 and/or negligence. (Doc. 7.) The Court directed Plaintiff, within twenty-one days, to “(1) file a 22 first amended complaint, (2) file a notice indicating that he wishes to stand on his complaint 23 subject to the undersigned recommending the district court dismiss . . . the complaint for the 24 reasons stated above in this order; or (3) file a notice to voluntary dismiss this action pursuant to 25 Rule 41(a)(1). (Id. at 9.) The Court plainly warned Plaintiff: “Plaintiff is forewarned that failure 26 to comply with this order may result in an order of dismissal or a recommendation that the 27 petition be dismissed pursuant to Local Rule 110.” (Id.) Despite this admonishment, Plaintiff 28 failed to respond to the order. 1 On May 31, 2023, the Court entered an order requiring Plaintiff to show cause why this 2 action should not be dismissed for failure to state a claim, failure to comply with a court order, 3 and failure to prosecute. (Doc. 8.) The Court afforded Plaintiff fourteen days to respond to the 4 order. Alternatively, Plaintiff was granted leave to file a first amended complaint curing the 5 deficiencies identified in the Court’s screening order or file a notice of voluntary dismissal of 6 this case. The Court warned: Failure to comply with this Order will result in a 7 recommendation for the dismissal of this case, without further notice, for failure to state a 8 claim, failure to comply with a court order, and failure to prosecute. (Id.) 9 Plaintiff failed to comply with the order to show cause, and the time to do so has passed. 10 A pro se plaintiff must comply with orders of the Court. See L.R. 183. Failure to comply 11 with a court order may be grounds for imposition of sanctions, including dismissal or any other 12 sanction appropriate under the Local Rules. L.R. 110, 183. The district court’s inherent power 13 to control its docket also allows the court to impose sanctions, including dismissal of an action. 14 Thompson v. Hous. Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986); see L.R. 110. 15 In considering whether to dismiss an action for failure to comply with a court order, the 16 Court must weigh the following factors: “(1) the public’s interest in expeditious resolution of 17 litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; 18 (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of 19 cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. 20 Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 21 The Ninth Circuit has explained that “[t]he public’s interest in expeditious resolution of 22 litigation always favors dismissal.” Pagtalunan, 291 F.3d at 642 (quoting Yourish v. Cal. 23 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Plaintiff has failed to advance and prosecute this 24 case by ignoring this Court’s directions in its April 26 screening order and May 31 show cause 25 order requiring Plaintiff to file a response. Accordingly, this factor weighs in favor of dismissal. 26 The Court’s need to manage its docket also weighs in favor of dismissal. “The trial judge 27 is in the best position to determine whether the delay in a particular case interferes with docket 28 management and the public interest . . . . It is incumbent upon the Court to manage its docket 1 without being subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 642. Here, 2 Plaintiff’s failure to file the responses required by this Court’s April 26 screening order and 3 May 31 show cause order is delaying this case and interfering with docket management. 4 Therefore, the second factor also weighs in favor of dismissal. 5 With respect to the third factor, the risk of prejudice, “pendency of a lawsuit is not 6 sufficiently prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 7 991. However, “delay inherently increases the risk that witnesses’ memories will fade and 8 evidence will become stale.” Pagtalunan, 291 F.3d at 643. Plaintiff’s failure to comply with a 9 court order and to prosecute this case is causing a delay. The third factor also weighs in favor of 10 dismissal. 11 As for the availability of lesser sanctions, at this stage in the proceedings there is little 12 available to the Court which would constitute a satisfactory lesser sanction while protecting the 13 Court from further, unnecessary expenditure of its scarce resources. Given Plaintiff’s 14 incarceration and in forma pauperis status, monetary sanctions are of little use. Moreover, at the 15 stage of these proceedings, the preclusion of evidence or witnesses is not available. The Ninth 16 Circuit has explained that “[a] district court need not exhaust every sanction short of dismissal 17 before finally dismissing a case, but must explore possible and meaningful alternatives.” 18 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). “A district court’s warning to a party 19 that his failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of 20 alternatives’ requirement.” Ferdik, 963 F.2d at 1262. Additionally, because the dismissal being 21 considered in this case is without prejudice, the Court is stopping short of imposing the harshest 22 possible sanction of dismissal with prejudice. 23 The fifth factor, the public policy favoring the disposition of cases on their merits, 24 ordinarily weighs against dismissal. See In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 25 1217, 1228 (9th Cir. 2006). However, because Plaintiff has disregarded the Court’s orders, this 26 factor does not weigh completely against dismissal. 27 After weighing these factors, the Court finds that dismissal is appropriate. Additionally, 28 Plaintiff appears to have abandoned this action. Whether he has done so intentionally or 1 | mistakenly is inconsequential. Plaintiff bears the responsibility to comply with the Court’s 2 | orders. The Court declines to expend its limited resources on a case that Plaintiff no longer 3 | wishes to prosecute. 4 Accordingly, it is hereby RECOMMENDED: 5 1. The Court DISMISS this action WITH PREJUDICE for failure to state a 6 claim upon which relief may be granted, failure to obey a court order, and 7 failure to prosecute; and 8 2. Direct the Clerk of Court to close this case. 9 These Findings and Recommendations will be submitted to the United States District 10 || Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). Within 14 days from the date of 11 | service of these Findings and Recommendations, Plaintiff may file written objections with the 12 | Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 13 | Recommendations.” Plaintiffs failure to file objections within the specified time may result in 14 | waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 15 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 | IT IS □□ ORDERED. 'T | Dated: _ June 22, 2023 | Wr bo 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28