(PC) Weaver v. Lopez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADARYLL WEAVER, Case No. 1:20-cv-00699-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN TO DISTRICT JUDGE 13 v. 14 SHERRY LOPEZ, DR. A. ZEPP, KERN FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO TO VALLEY STATE PRISON, 15 PROSECUTE Defendants. 16 14-DAY DEADLINE 17 Plaintiff Adaryll Weaver is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action. For the reasons set forth below, the undersigned recommends 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 Weaver, a state prisoner, is proceeding pro se on his initial civil rights complaint 23 under 42 U.S.C. § 1983 alleging claims of medical deliberate indifference under the Eighth 24 Amendment. (Doc. No. 1, “Complaint”). On March 2, 2023, the Court issued a screening order 25 finding the Complaint failed to state a cognizable Eighth Amendment medical deliberate 26 indifference claim. (See generally Doc. No. 9). Plaintiff was given three options to exercise 27 within twenty-one (21) days from receipt of the March 2, 2023 Order: (1) file a First Amended 1 Complaint (“FAC”); (2) file a notice that he intends to stand on his initial complaint subject to the 2 undersigned recommending the district court dismiss for reasons stated in the March 2, 2023 3 Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, under 4 Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 9, ¶ 5 1). The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order, 6 i.e., fails to elect and notify the Court of any of the three options, the undersigned will instead 7 recommend that the district court dismiss this case as a sanction for Plaintiff’s failure to comply 8 with a court order and for failing to prosecute this action after its determination that the complaint 9 failed to state a claim, which will count as strike under the PLRA.” (Id., ¶ 2). The twenty-one 10 (21) day deadline has lapsed and Plaintiff has not elected any of the three options or otherwise 11 moved for an extension of time.1 (See generally docket). 12 directing Plaintiff to file a first amended complaint curing the deficiencies in his pleading, 13 file a notice that or file a notice of voluntary dismissal. (Doc. No. 9). The Court expressly 14 warned Plaintiff that the failure to comply with March 2, 2023 Screening Order would result in 15 the recommendation that the case be dismissed for failure to prosecute and failure to obey a court 16 order. (Id. at 7-8). Plaintiff was given twenty-one days to respond to the March 2, 2023 17 Screening Order. (Id. at 7-8). Plaintiff has failed to respond to the March 2, 2023 Screening 18 Order and the time to do so has expired. 19 APPLICABLE LAW AND ANALYSIS 20 A. Legal Standard 21 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 22 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 23 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 24 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 25 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of 26 the Court may be grounds for the imposition by the Court of any and all sanctions … within the 27 1 The undersigned further notes that as of the date of these Findings and Recommendations 39 days has 1 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 2 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 3 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 4 court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, 5 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 6 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 7 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 8 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 9 to comply with local rules). 10 In determining whether to dismiss an action, the Court must consider several factors: 11 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 12 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 13 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 14 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 15 B. Analysis 16 The undersigned considers each of the above-stated factors and concludes dismissal is 17 warranted in this case. As to the first factor, the expeditious resolution of litigation is deemed to 18 be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 19 990-91 (9th Cir. 1999). Turning to the second factor, the Court’s need to efficiently manage its 20 docket cannot be overstated. This Court has “one of the heaviest caseloads in the nation,” and 21 due to unfilled judicial vacancies, which is further exacerbated by the Covid-19 pandemic, 22 operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing 23 Judicial Emergency in the Eastern District of California. The Court’s time is better spent on its 24 other matters than needlessly consumed managing a case with a recalcitrant litigant. Because the 25 Court cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court 26 finds that both the first and second factors weigh in favor of dismissal. 27 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 1 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor, risk of prejudice 2 to defendant, also weighs in favor of dismissal since a presumption of injury arises from the 3 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 4 524 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this 5 action, weighing in favor of dismissal for a risk of prejudice to defendants. 6 Finally, the fourth factor usually weighs against dismissal because public policy favors 7 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 8 “this factor lends little support to a party whose responsibility it is to move a case toward 9 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 10 here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th 11 Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures 12 by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan v. Galaza, 13 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of district court’s 14 involuntary dismissal with prejudice of habeas petition where petitioner failed to timely respond 15 to court order and noting “the weight of the docket-managing factor depends upon the size and 16 load of the docket, and those in the best position to know what that is are our beleaguered trial 17 judges.”). Further, the Court has already screened the Complaint and found it failed to state a 18 meritorious claim as plead. 19 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 20 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 21 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s March 2, 2023 Screening 22 Order expressly warned Plaintiff that his failure to comply with the Court’s order would result in 23 a recommendation for dismissal of this action. (Doc. No. 9, ¶ 2). Thus, Plaintiff had adequate 24 warning that dismissal could result from his noncompliance. And the instant dismissal is a 25 dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 26 addressing the fifth factor. 27 After considering the factors set forth supra and binding case law, the undersigned 1 Accordingly, it is ORDERED: 2 The Clerk of the Court randomly assign this case to a District Judge. 3 It is further RECOMMENDED: 4 This action be DISMISSED without prejudice for Plaintiff's failure to obey court orders 5 | and failure to prosecute. 6 NOTICE 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 9 | of the date of service of these Findings and Recommendations, Plaintiff may file written 10 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 11 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 12 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 | Dated: _ April 10, 2023 Wiha. Mh. Bareh Zaskth 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28