(PC) Roberts v. Franco ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID NATHANIEL ROBERTS, Case No. 1:20-cv-00851-HBK (PC) 12 Plaintiff, ORDER DIRECTING CLERK TO ASSIGN 13 v. ACTION TO DISTRICT JUDGE 14 FRANCO, HUCKLEBERRY, FINDINGS AND RECOMMENDATIONS TO 15 Defendants. DISMISS ACTION FOR FAILURE TO PROSECUTE1 16 14-DAY DEADLINE 17 18 Plaintiff David Roberts is a state prisoner proceeding pro se in this civil rights action.2 19 For the reasons set forth below, the undersigned recommends the District Court dismiss this 20 action without prejudice for Plaintiff’s failure to comply with a court order and prosecute this 21 action. 22 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 23 (E.D. Cal. 2022). 2 Upon review of the docket, it does not appear that Plaintiff was ever granted in forma pauperis status, 24 although no motion appears to be pending on the docket. (See Doc. Nos. 2,7, 15). Nonetheless, it appears that Plaintiff would have been a three-striker at the time he filed the instant action. See Roberts v. KVSP 25 Investigation Unit, case no. 1:19-cv-01055-AWI-SAB (E.D. Cal. 2019) (dismissed on November 25, 2019 26 for failure to state a claim); Roberts v. Riverside County Superior Courts, case no. 5:19-cv-00446-VBF- RAO (C.D. Cal. 2019)(dismissed on April 15, 2019 as frivolous); and Roberts v. Henderson, et al., case 27 no. 1:19-cv-00091-0DAD-EPG (E.D. Cal. 2019) (dismissed on March 7, 2019 as duplicative). Because it appears that Plaintiff has abandoned this action and a dismissal of the case for failure to prosecute is appropriate, the Court finds it unnecessary to address Plaintiff request to proceed in forma pauperis and 1 BACKGROUND 2 Plaintiff Roberts, a state prisoner, is proceeding pro se on his first amended civil rights 3 complaint under 42 U.S.C. § 1983 alleging medical deliberate indifference and excessive use of 4 force claims under the Eighth Amendment. (Doc. No. 20, “FAC”). On March 3, 2023, the Court 5 issued a screening order finding the FAC failed to state a cognizable Eighth Amendment medical 6 deliberate indifference claim, or an excessive use of force claim, against any Defendant. (See 7 generally Doc. No. 27). Plaintiff was given three options to exercise within twenty-one (21) days 8 from receipt of the March 3, 2023 Order: (1) file a Second Amended Complaint (“SAC”); (2) file 9 a notice that he intends to stand on his FAC subject to the undersigned recommending the district 10 court dismiss for reasons stated in the March 3, 2023 Screening Order; or (3) file a notice to 11 voluntarily dismiss this action, without prejudice, under Federal Rule of Civil Procedure 41(a)(1) 12 because no defendant had yet been served. (Id. at 27, ¶ 1). The Court expressly warned Plaintiff 13 that if he “fails to timely respond to this Court Order or seek an extension of time to comply” the 14 undersigned “will recommend that the district court dismiss this case as a sanction for Plaintiff’s 15 failure to comply with a court order and prosecute this action.” (Id., ¶ 2). The twenty-one (21) 16 day deadline has lapsed and Plaintiff has not elected any of the three options or otherwise moved 17 for an extension of time.3 (See generally docket). It appears Plaintiff has abandoned this action. 18 APPLICABLE LAW AND ANALYSIS 19 A. Legal Standard 20 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 21 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 22 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 23 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule 24 of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of 25 the Court may be grounds for the imposition by the Court of any and all sanctions … within the 26 inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control 27 3 The undersigned further notes that as of the date of these Findings and Recommendations 39 days has passed. Thus, Plaintiff was afforded more than sufficient time (an additional 18 days) to account for any 1 their dockets” and, in exercising that power, may impose sanctions, including dismissal of an 2 action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A 3 court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, 4 or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 5 (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal 6 Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); 7 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 8 to comply with local rules). 9 In determining whether to dismiss an action, the Court must consider several factors: 10 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 11 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 12 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 13 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 14 B. Analysis 15 As to the first factor, the expeditious resolution of litigation is deemed to be in the public 16 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 17 1999). Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 18 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 19 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 20 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 21 Emergency in the Eastern District of California. The Court’s time is better spent on its other 22 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 23 effectively manage its docket if a plaintiff ceases to litigate his case. Thus, the Court finds that 24 both the first and second factors weigh in favor of dismissal. 25 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 26 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 27 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor, risk of prejudice 1 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 2 524 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this 3 action, weighing in favor of dismissal for a risk of prejudice to defendants. 4 Finally, the fourth factor usually weighs against dismissal because public policy favors 5 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 6 “this factor lends little support to a party whose responsibility it is to move a case toward 7 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 8 here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th 9 Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures 10 by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan v. Galaza, 11 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of district court’s 12 involuntary dismissal with prejudice of habeas petition where petitioner failed to timely respond 13 to court order and noting “the weight of the docket-managing factor depends upon the size and 14 load of the docket, and those in the best position to know what that is are our beleaguered trial 15 judges.”). Notably, the Court’s March 3, 2023 screening order found the FAC did not state a 16 meritorious claim a plead. 17 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 18 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 19 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s March 3, 2023 Screening 20 Order expressly warned Plaintiff that his failure to comply with the Court’s order would result in 21 a recommendation for dismissal of this action. Thus, Plaintiff had adequate warning that 22 dismissal could result from his noncompliance. And the instant dismissal is a dismissal without 23 prejudice, which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth 24 factor. 25 After considering the factors set forth supra and binding case law, the undersigned 26 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 27 Accordingly, it is ORDERED: 1 It is further RECOMMENDED: 2 This action be DISMISSED without prejudice for Plaintiff's failure to obey court orders 3 | and failure to prosecute. 4 NOTICE 5 These Findings and Recommendations will be submitted to the United States District 6 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 7 | of the date of service of these Findings and Recommendations, Plaintiff may file written 8 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 9 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 10 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 11 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 Dated: __April 11, 2023 Wile. □□□ foareh Zack 14 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28