(PC) Hernandez v. Kelly ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE L. HERNANDEZ, JR., Case No. 1:21-cv-00130-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DISMISS ACTION FOR FAILURE TO OBEY COURT ORDERS 14 KELLY, et al., 14-DAY DEADLINE 15 Defendants. Clerk of the Court to Assign a District Court 16 Judge to this Action 17 18 Plaintiff Jose L. Hernandez, Jr., initiated this action while in state custody. (Doc. 1.) 19 Plaintiff is proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 On February 1, 2022, the Court issued its first screening order. (Doc. 10.) The 22 undersigned determined Plaintiff had failed to establish a cognizable claim of deliberate 23 indifference under the Eighth Amendment. (Id. at 3-5.) Plaintiff was granted leave to file an 24 amended complaint1 curing the deficiencies identified in the order. (Id. at 5.) Plaintiff was to file 25 the amended complaint within 21 days, or, alternatively, to file a notice of voluntary dismissal. 26 27 1 The order references a “second amended complaint.” In fact, had Plaintiff complied with the order, the amended complaint would have been properly designated a first amended complaint subject to further screening by the Court. 1 (Id. at 5.)2 More than 21 days passed, and Plaintiff failed to file an amended complaint or a 2 notice of voluntary dismissal. 3 On March 15, 2022, the Court issued an Order to Show Cause (“OSC”) why the action 4 should not be dismissed for a failure to a obey court order. (Doc. 11.) Plaintiff was provided 21 5 days within which to file a written response to the OSC, or, alternatively, to file a first amended 6 complaint or notice of voluntary dismissal. (Id. at 2.) More than 21 days have passed, and 7 Plaintiff has neither responded in writing to the OSC, nor filed an amended complaint or notice of 8 voluntary dismissal. 9 II. DISCUSSION 10 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 11 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 12 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 13 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 14 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 15 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 16 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 17 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 18 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 19 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 20 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 21 In determining whether to dismiss an action, the Court must consider several factors: 22 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 23 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 24 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 25 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 26 // 27 2 The screening order was served on Plaintiff at his current address in Santa Rosa, California, following his release from custody as referenced in Plaintiff’s notice of change of address filed in August 2021. (See 1 Plaintiff has not filed an amended complaint or a notice of voluntary dismissal, nor 2 responded to the OSC concerning his failure to file an amended complaint or notice of voluntary 3 dismissal. The Court cannot effectively manage its docket if Plaintiff ceases litigating his case. 4 Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 5 Henderson, 779 F.2d at 1423. 6 The third factor, risk of prejudice to defendant, is a lesser factor here as named defendants 7 have not yet appeared in the action. A presumption of harm or injury arises, however, from the 8 occurrence of unreasonable delay in prosecuting an action. See Anderson v. Air W., 542 F.2d 522, 9 524 (9th Cir. 1976). 10 The fourth factor usually weighs against dismissal because public policy favors 11 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 12 “this factor lends little support to a party whose responsibility it is to move a case toward 13 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 14 here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th 15 Cir. 2006) (citation omitted). 16 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 17 dismissal satisfies the “considerations of the alternatives” requirement, or fifth factor. Ferdik, 963 18 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. Here, the Court’s 19 February 1, 2022, and March 15, 2022, Orders expressly warned Plaintiff that his failure to 20 comply with the Court’s order would result in a recommendation for dismissal of this action. (See 21 Doc. 10 at 6 & Doc. 11 at 2.) Thus, Plaintiff had adequate warning that dismissal could result 22 from his noncompliance. 23 It appears that Plaintiff has abandoned this action. Whether Plaintiff has done so 24 intentionally or mistakenly is inconsequential. It is Plaintiff’s responsibility to comply with the 25 Court’s orders. The Court declines to expend its limited resources on a case that Plaintiff has 26 chosen to ignore. 27 // 1 III. CONCLUSION AND RECOMMENDATION 2 For the reasons stated above, this Court RECOMMENDS that this action be DISMISSED 3 for Plaintiff’s failure to obey court orders. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 6 service of these Findings and Recommendations, Plaintiff may file written objections with the 7 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 8 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 9 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 10 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 Lastly, the Court directs the Clerk of the Court to assign a district court judge to this 12 action. 13 IT IS SO ORDERED. 14 15 Dated: April 15, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27