(PS) Shaw v. Kaiser Permanente Vallejo Medical Center ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAN SHAW, No. 2:21-cv-0617 DAD DB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 KAISER PERMANENTE VALLEJO MEDICAL CENTER, 15 16 Defendant. 17 18 Plaintiff Dan Shaw is proceeding in this action pro se. This matter was referred to the 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On April 26, 20 2021, plaintiff’s application to proceed in forma pauperis was granted and summons issued. 21 (ECF No. 3.) The order directed plaintiff to supply the U.S. Marshal with all the information 22 necessary to effect service within sixty days and to file a declaration stating the date on which 23 plaintiff submitted the required documents to the U.S. Marshal within twenty days. Well over 80 24 days passed and the docket reflected no action by plaintiff. 25 Accordingly, on April 20, 2022, the Court issued an order to show cause, ordering 26 plaintiff to show cause in writing within fourteen days as to why this action should not be 27 dismissed for lack of prosecution. (ECF No. 10.) Plaintiff was warned that the failure to timely 28 comply with that order could result in a recommendation that this case be dismissed. (Id. at 2.) 1 Nonetheless, the time provided plaintiff has expired and plaintiff has not responded to the April 2 20, 2022 order. 3 ANALYSIS 4 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 5 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 6 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 7 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 8 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 9 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 10 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 11 at 1260. 12 Failure of a party to comply with the any order of the court “may be grounds for 13 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 14 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 15 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 16 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 17 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 18 Rules. Id. 19 Here, it appears plaintiff has failed to timely serve a defendant. And plaintiff failed to 20 respond to the April 20, 2022 order. Plaintiff was warned that the failure to file a written 21 response to that order could result in a recommendation that this matter be dismissed. In this 22 regard, plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions 23 futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to 24 manage its docket, and the risk of prejudice to the defendant all support the imposition of the 25 sanction of dismissal. Only the public policy favoring disposition on the merits counsels against 26 dismissal. However, plaintiff’s failure to prosecute the action in any way makes disposition on 27 the merits an impossibility. The undersigned will therefore recommend that this action be 28 //// 1 | dismissed due to plaintiffs failure to prosecute as well as plaintiffs failure to comply with the 2 || court’s orders. See Fed. R. Civ. P. 41(b). 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff's April 5, 2021 complaint (ECF No. 1) be dismissed without prejudice; and 5 2. This action be closed. 6 These findings and recommendations will be submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 8 | days after being served with these findings and recommendations, plaintiff may file written 9 | objections with the court. A document containing objections should be titled “Objections to 10 | Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 | objections within the specified time may, under certain circumstances, waive the right to appeal 12 | the District Court’s order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 | Dated: October 13, 2022 14 15 16 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 DBlorders\orders.pro se\shaw0617.dlop.f&rs 23 24 25 26 27 28