(PC) Plett v. Foster ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MIKEL PLETT, Case No. 1:22-cv-01261-ADA-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE1 13 v. 14-DAY DEADLINE 14 S. FOSTER and WALLARD, 15 Defendants. 16 17 Plaintiff Mikel Plett is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action. For the reasons set forth below, the undersigned recommends that the District 19 Court dismiss this action without prejudice for Plaintiff’s failure to comply with a court order and 20 prosecute this action. 21 BACKGROUND 22 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983. 23 (Doc. No. 1, “Complaint”). On June 29, 2023, pursuant to 28 U.S.C. § 1915A the Court issued a 24 screening order finding the Complaint failed to state a federal claim against any Defendant. (See 25 generally Doc. No. 12). Plaintiff timely filed a first amended complaint (“FAC”) on July 13, 26 2023. (Doc. No. 13). On October 4, 2023, the Court screened the FAC and found it failed to 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 state a claim. (See Doc. No. 16). The Court afforded Plaintiff three options to exercise no later 2 than November 3, 2023: (1) file an amended complaint; (2) file a notice that he intends to stand 3 on the FAC subject to the undersigned recommending the district court dismiss for reasons stated 4 in the October 4, 2023 Screening Order; or (3) file a notice to voluntarily dismiss this action, 5 without prejudice, under Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet 6 been served. (Id. at 6-7). Plaintiff was required to deliver his response to the Court’s Screening 7 Order to correctional officials for mailing no later than November 3, 2023. (Id. at 7 ¶ 1). 8 The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order 9 or seek an extension of time to comply” the undersigned “will recommend that the district court 10 dismiss this case as a sanction for Plaintiff’s failure to comply with a court order and prosecute 11 this action.” (Id. ¶ 2). As of the date of this of this Findings and Recommendation, Plaintiff has 12 failed to exercise any of the three options from the Court’s Screening Order, or request an 13 extension of time to comply, and the time to do so has expired.2 (See docket.) 14 APPLICABLE LAW AND ANALYSIS 15 A. Legal Standard 16 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 17 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 18 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 19 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 20 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . 21 any order of the Court may be grounds for the imposition by the Court of any and all sanctions 22 . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent 23 power to control their dockets” and, in exercising that power, may impose sanctions, including 24 dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th 25 Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey 26 a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 27 2 As of the date of these Findings and Recommendation, 17 days have passed from the date Plaintiff was to deliver 28 his response to correctional officials for mailing, providing sufficient time for mailing. 1 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone 2 v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with 3 a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure 4 to prosecute and to comply with local rules). In determining whether to dismiss an action, the 5 Court must consider the following factors: (1) the public’s interest in expeditious resolution of 6 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; 7 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 8 drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 9 1988). 10 B. Analysis 11 After considering each of the above-stated factors, the undersigned concludes dismissal 12 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 13 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 14 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 15 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 16 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 17 filling judicial vacancies, which was further exacerbated by the COVID-19 pandemic, operates 18 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 19 Emergency in the Eastern District of California. This Court’s time is better spent on its other 20 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 21 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 22 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 23 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 24 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 25 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 26 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 27 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 28 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 1 the third factor weighs in favor of dismissal. 2 The fourth factor usually weighs against dismissal because public policy favors the 3 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 4 However, “this factor lends little support to a party whose responsibility it is to move a case 5 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 6 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 7 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 8 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 9 Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of district court’s involuntary 10 dismissal with prejudice of habeas petition where petitioner failed to timely respond to court 11 order and noting “the weight of the docket-managing factor depends upon the size and load of the 12 docket, and those in the best position to know what that is are our beleaguered trial judges.”). 13 Further, as set forth in the Screening Order, the Court already determined that the Complaint, as 14 pled, failed to state a claim, so this factor does not weigh in favor of the Plaintiff. 15 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 16 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 17 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s October 4, 2023 Order 18 expressly warned Plaintiff that his failure to comply with the Court’s order would result in a 19 recommendation for dismissal of this action. (Doc. 16 at 7 ¶ 2). Thus, Plaintiff had adequate 20 warning that dismissal could result from his noncompliance. And the instant dismissal is a 21 dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 22 satisfying the fifth factor. 23 After considering the factors set forth supra and binding case law, the undersigned 24 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 25 Accordingly, it is hereby RECOMMENDED: 26 This action be DISMISSED without prejudice for Plaintiff’s failure to obey court orders 27 and failure to prosecute. 28 //// 1 NOTICE 2 These Findings and Recommendations will be submitted to the United States District 3 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 4 | of the date of service of these Findings and Recommendations, a party may file written objections 5 || with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 6 | and Recommendations.” A party’s failure to file objections within the specified time may result in 7 | waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 8 || Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 Dated: _ November 20, 2023 Gow ZA. Bareh Zack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28