(PS) DeVan Daniel v. Clayborne ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN DEVAN DANIEL, No. 2:22–cv–1350–KJM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 ROBERT CLAYBORNE, et al., 15 Defendants. 16 17 Plaintiff, proceeding pro se, filed a complaint against several defendants and requested 18 leave to proceed in forma pauperis. (See ECF Nos. 1, 2.) The court granted plaintiff’s IFP 19 request but granted plaintiff leave to amend, finding the complaint lacked sufficient facts to 20 plausibly allege a violation of plaintiff’s constitutional rights. (ECF No. 3.) Plaintiff was given 21 28 days to amend the complaint and was warned that failure to do so by the required deadline 22 could result in sanctions, including “dismissal of the action with prejudice pursuant to Federal 23 Rule of Civil Procedure 41(b).” (Id. at 5.) Despite an extension of time, plaintiff has failed to file 24 an amended complaint by the deadline. Accordingly, the undersigned recommends dismissing 25 this case with prejudice under Rule 41(b).1 26 /// 27 28 1 This case was referred to the undersigned by Local Rule 302(c)(21). See 28 U.S.C. § 636. 1 Discussion 2 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 3 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 4 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 5 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 6 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 7 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 8 under Rule 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to 9 follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 10 F.2d 1258, 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil 11 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 12 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 13 curiam) (stating that district courts have inherent power to control their dockets and may impose 14 sanctions including dismissal or default). This court’s Local Rules are in accord. See E.D. Cal. 15 Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any order of 16 the Court may be grounds for imposition by the Court of any and all sanctions authorized by 17 statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) 18 (providing that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the 19 court’s Local Rules, and other applicable law may support, among other things, dismissal of that 20 party’s action). 21 A court must weigh five factors in determining whether to dismiss a case for failure to 22 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 23 rules. See Ferdik, 963 F.2d at 1260. These are: 24 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 25 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 26 (5) the availability of less drastic alternatives. 27 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 28 /// 1 Here, the first two factors weigh in favor of dismissal, because this case was delayed by 2 plaintiff’s failure to take the steps necessary to move this case forward. The third factor also 3 favors dismissal, because, at a minimum, defendants have been deprived of an opportunity to be 4 promptly notified of the lawsuit and prepare their defense. With the passage of time, memories 5 fade and evidence becomes stale. The fifth factor also favors dismissal because the court has 6 already attempted less drastic alternatives. Specifically, after granting plaintiff leave to proceed 7 without paying the filing fee, the court informed plaintiff of the complaint’s deficiencies and 8 granted leave to amend. However, plaintiff has failed to file an amended complaint, leaving the 9 court with little alternative but to recommend dismissal. Given plaintiff’s request to proceed IFP, 10 it is unlikely that monetary sanctions would be effective. 11 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 12 factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to prosecute 13 the case and comply with the rules that precludes a resolution on the merits. Therefore, after 14 carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate. 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 1. Plaintiff’s claims be DISMISSED with prejudice pursuant to Federal Rule of Civil 17 Procedure 41(b); and 18 2. The Clerk of Court be directed to close this case. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 21 days after being served with these findings and recommendations, plaintiff may file written 22 objections with the court. Such a document should be captioned “Objections to Magistrate 23 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 24 //// 25 //// 26 //// 27 //// 28 //// 1 | the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 2 | 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 3 | Dated: October 25, 2022 ' Foci) Aharon 5 KENDALL J. NE dani. 1350 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28