(PS) Chiu v. Unknown ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAIFUSIN CHIU, No. 2:23–cv–1053–KJM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. 14 UNKNOWN, 15 Defendants. 16 17 Plaintiff, proceeding without the assistance of counsel, filed a complaint against an 18 unknown defendant; plaintiff also requested leave to proceed in forma pauperis. (See ECF Nos. 19 1, 2.) The court granted plaintiff’s IFP request and dismissed the complaint, finding it failed to 20 state a claim, failed to provide a short and plain statement of the court’s jurisdiction and relief 21 sought, and finding it frivolous on its face. (ECF No. 3.) Given that the court could not say 22 whether no claim could be stated, plaintiff was given 28 days to amend the complaint and was 23 warned that failure to do so by the required deadline could result in sanctions, including 24 “dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b).” (Id. 25 at 5.) That deadline has passed with no filings from plaintiff. Accordingly, the undersigned 26 recommends dismissing this case with prejudice under Rule 41(b) for failing to state a claim in 27 his original complaint and failure to prosecute. 28 /// 1 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 2 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 3 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 4 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 5 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 6 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 7 under Rule 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to 8 follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 9 F.2d 1258, 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil 10 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 11 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 12 curiam) (stating that district courts have inherent power to control their dockets and may impose 13 sanctions including dismissal or default). This court’s Local Rules are in accord. See E.D. Cal. 14 Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any order of 15 the Court may be grounds for imposition by the Court of any and all sanctions authorized by 16 statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) 17 (providing that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the 18 court’s Local Rules, and other applicable law may support, among other things, dismissal of that 19 party’s action). 20 A court must weigh five factors in determining whether to dismiss a case for failure to 21 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 22 rules. See Ferdik, 963 F.2d at 1260. These are: 23 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 24 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 25 (5) the availability of less drastic alternatives. 26 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 27 Here, the first two factors weigh in favor of dismissal, because this case was delayed by 28 plaintiff’s failure to take the steps necessary to move this case forward. The third factor also 1 | favors dismissal, because, at a minimum, defendants have been deprived of an opportunity to be 2 || promptly notified of the lawsuit and prepare their defense. With the passage of time, memories 3 || fade and evidence becomes stale. The fifth factor also favors dismissal because the court has 4 || already attempted less drastic alternatives. Specifically, after granting plaintiff leave to proceed 5 || without paying the filing fee, the court informed plaintiff of the complaint’s deficiencies and 6 || granted leave to amend. However, plaintiff filed nothing since the initial complaint, leaving the 7 || court with little alternative but to recommend dismissal. Given plaintiff's request to proceed IFP, 8 | itis unlikely that monetary sanctions would be effective. 9 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 10 || factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff's own failure to prosecute 11 || the case and comply with the rules that precludes a resolution on the merits. Therefore, after 12 | carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate. 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiffs claims be DISMISSED with prejudice pursuant to Federal Rule of Civil 15 Procedure 41(b); and 16 2. The Clerk of Court be directed to close this case. 17 These findings and recommendations are submitted to the United States District Judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 19 || days after being served with these findings and recommendations, plaintiff may file written 20 || objections with the court. Such a document should be captioned “Objections to Magistrate 21 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 22 || the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 23 | 158 F.3d 449, 455 (th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 24 | Dated: July 19, 2023 Foci) Aharon 2% KENDALL J. NE chiu.1053 UNITED STATES MAGISTRATE JUDGE 27 28