(PC) Carroll v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRAIG CARROLL, Case No. 1:21-cv-00821-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE 13 v. FOURTEEN-DAY OBJECTION PERIOD 14 WARDEN, SCOTT, HOLMES, ORDER TO ASSIGN A DISTRICT JUDGE 15 Defendants. (Doc. No. 6) 16 17 Plaintiff Craig Carroll—a state prisoner—proceeds pro se on a prisoner civil rights 18 complaint filed under 42 U.S.C. § 1983 on May 20, 2021. (Doc. No. 1). On May 20, 2021, 19 Plaintiff filed a motion to proceed in forma pauperis (Doc. No. 2), which was denied without 20 prejudice on May 26, 2021, because Plaintiff did not use the court’s approved form, did not 21 demonstrate indigence, and did not provide a copy of his inmate account required by § 1915. 22 (Doc. No. 6). The Court’s May 26, 2021, Order directed Plaintiff to complete a proper in forma 23 pauperis application or pay the requisite filing fee within 21 days. (Id.). The Court warned 24 Plaintiff that his failure to comply with the Order would result in the recommendation that 25 Plaintiff’s case be dismissed for failure to comply with the Court’s Order. (Id.). As of the date on 26 this Report and Recommendation, Plaintiff has not responded or otherwise complied with the 27 May 26, 2021, Order and the time to do so has long expired. Based on the facts and appliable 28 law, the undersigned recommends this action be dismissed for failure to comply with the Court’s 1 order and for failure to prosecute. 2 APPLICABLE LAW 3 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 4 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 5 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 6 (9th Cir. 2019) (citations omitted). Local Rule 110 similarly permits the court to impose 7 sanctions on a party who fails to comply with the court’s Rules or any order of court. 8 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 9 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 10 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; (5) the 11 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting court 12 that these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis 13 added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors 14 and independently reviewing the record because district court did not make finding as to each); 15 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 16 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 17 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff 18 did not amend caption to remove “et al” as the court directed and reiterating that an explicit 19 finding of each factor is not required by the district court). 20 ANALYSIS 21 The undersigned considers each of the above-stated factors and concludes dismissal is 22 warranted in this case. As to the first factor, the expeditious resolution of litigation is deemed to 23 be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 24 990-91 (9th Cir. 1999). Turning to the second factor, the Court’s need to efficiently manage its 25 docket cannot be overstated. This Court has “one of the heaviest caseloads in the nation,” and 26 due to unfilled judicial vacancies, which is further exacerbated by the Covid-19 pandemic, 27 operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing 28 Judicial Emergency in the Eastern District of California. The Court’s time is better spent on its 1 other matters than needlessly consumed managing a case with a recalcitrant litigant. 2 A pacer search reveals Plaintiff is no stranger to the federal courts. Plaintiff has initiated 3 seven (7) federal civil actions in the federal courts. Significant here is that Plaintiff’s litigation 4 history evidences he is aware of the requirement that he must accompany his complaint with a 5 motion to proceed in forma pauperis or pay the filing fee, but also that the Court warned Plaintiff 6 that if he failed to timely comply with the Court’s order the Court would recommend dismissal. 7 Indeed, “trial courts do not have time to waste on multiple failures by aspiring litigants to 8 follow the rules and requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th 9 Cir. 2002) (Trott, J., concurring in affirmance of district court’s involuntary dismissal with 10 prejudice of habeas petition where petitioner failed to timely respond to court order and noting 11 “the weight of the docket-managing factor depends upon the size and load of the docket, and 12 those in the best position to know what that is are our beleaguered trial judges.”). Delays 13 inevitably have the inherent risk that evidence will become stale or witnesses’ memories will fade 14 or be unavailable and can prejudice a defendant, thereby satisfying the third factor. See Sibron v. 15 New York, 392 U.S. 40, 57 (1968). Finally, the instant dismissal is a dismissal without prejudice, 16 which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 17 After considering the factors set forth supra and binding case law, the undersigned 18 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 19 Accordingly, it is ORDERED: 20 The Clerk of Court shall assign a district court judge. 21 It is further RECOMMENDED: 22 This case be dismissed without prejudice. 23 NOTICE TO PARTIES 24 These findings and recommendations will be submitted to the United States district 25 judge assigned to the case, pursuant to the provisions 28 U.S.C. § 636(b)(1). Within fourteen 26 (14) days after being served with these findings and recommendations, a party may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Parties are advised that failure to file objections within the 1 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 2 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 “| Dated: _ May 3, 2022 law □□□ fareh Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28