(PS) Fulkerson v. Nevada Attorney General's Office ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HEATH V. FULKERSON, No. 2:21-cv-1486 DAD DB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 NEVADA ATTORNEY GENERAL’S OFFICE, et al., 15 16 Defendants. 17 18 Plaintiff Heath Fulkerson is proceeding in this action pro se. This matter was referred to 19 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On August 20 19, 2021, plaintiff filed a complaint, paid the applicable filing fee, and summons issued. (ECF 21 Nos. 1 & 2.) A letter also issued that advised plaintiff that Rule 4(m) of the Federal Rules of 22 Civil Procedure provides that a defendant must be dismissed if service of the summons and 23 complaint is not accomplished on the defendant within 90 days after the complaint was filed. 24 (ECF No. 3.) More than 90 days passed, plaintiff took no action in this case, and the docket did 25 not reflect proof of service on, or the appearance of, a defendant. 26 //// 27 //// 28 //// 1 Accordingly, on April 12, 2022, the Court issued an order to show cause, ordering 2 plaintiff to show cause in writing within fourteen days as to why this action should not be 3 dismissed for lack of prosecution. (ECF No. 4.) Plaintiff was warned that the failure to timely 4 comply with that order could result in a recommendation that this case be dismissed. (Id. at 2.) 5 Nonetheless, the time provided plaintiff has expired and plaintiff has not responded to the April 6 12, 2022 order. 7 ANALYSIS 8 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 9 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 10 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 11 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 12 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 13 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 14 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 15 at 1260. 16 Failure of a party to comply with the any order of the court “may be grounds for 17 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 18 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 19 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 20 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 21 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 22 Rules. Id. 23 Here, it appears plaintiff has failed to timely serve a defendant. And plaintiff failed to 24 respond to the April 12, 2022 order. Plaintiff was warned that the failure to file a written 25 response to that order could result in a recommendation that this matter be dismissed. In this 26 regard, plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions 27 futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to 28 manage its docket, and the risk of prejudice to the defendant all support the imposition of the 1 | sanction of dismissal. Only the public policy favoring disposition on the merits counsels against 2 | dismissal. However, plaintiffs failure to prosecute the action in any way makes disposition on 3 | the merits an impossibility. The undersigned will therefore recommend that this action be 4 | dismissed due to plaintiff’s failure to prosecute as well as plaintiffs failure to comply with the 5 | court’s orders. See Fed. R. Civ. P. 41(b). 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. Plaintiffs August 19, 2022 complaint (ECF No. 1) be dismissed without prejudice; and 8 2. This action be closed. 9 These findings and recommendations will be submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 11 | days after being served with these findings and recommendations, plaintiff may file written 12 || objections with the court. A document containing objections should be titled “Objections to 13 | Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 | objections within the specified time may, under certain circumstances, waive the right to appeal 15 | the District Court’s order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | Dated: October 13, 2022 17 18 19 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 DBlorders\orders.pro se\fulkerson1486.dlop.f&rs 26 27 28