(PC) Schowachert v. Sorano ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN PAUL FRANK Case No. 1:21-cv-00975-HBK (PC) SCHOWACHERT, 12 ORDER TO ASSIGN A DISTRICT JUDGE Plaintiff, 13 FINDINGS AND RECOMMENDATIONS TO v. DISMISS ACTION WITHOUT PREJUDICE 14 FOR FAILURE TO EXHAUST KELLY SORANO, TAPIA, WOODS, ADMINISTRATIVE REMEDIES AND FOR 15 and DANZART, FAILURE TO PROSECUTE1 16 Defendants. FOURTEEN-DAY DEADLINE 17 18 Plaintiff John Paul Frank Schowachert, a prisoner, is proceeding pro se and in forma 19 pauperis in this civil rights action. For the reasons set forth below, the undersigned recommends 20 the District Court dismiss this action for Plaintiff’s failure to comply with a court order and 21 prosecute this action. 22 BACKGROUND 23 Plaintiff John Paul Frank Schowachert, a prisoner, initiated this action on June 16, 2021, 24 by filing a civil rights complaint under 42 U.S.C. § 1983 in the Sacramento Division of the 25 Eastern District of California. (Doc. No. 1, “Complaint”). On June 21, 2021, this action was 26 transferred to the Fresno Division of the Eastern District of California. (Doc. No. 5). On August 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca. 28 2022). 1 4, 2023, the undersigned issued an order to show cause directing Plaintiff to show cause why this 2 action should not be dismissed for Plaintiff’s failure to exhaust his administrative remedies prior 3 to initiating the lawsuit. (Doc. No. 10, “Order to Show Cause”). In the same Order to Show 4 Cause the undersigned noted other deficiencies in the Complaint including a failure to plead 5 sufficient facts that Defendant Danzart was a state actor, violations of Federal Rules of Civil 6 Procedure 8, 18(a), and 20(a)(2), and finding as frivolous Plaintiff’s claims of torture. (Id.). 7 Plaintiff was directed to file his response to the order to show cause no later than September 7, 8 2023. (Id. at 9 ¶ 1). The Court advised Plaintiff that he could alternatively file a notice of 9 voluntary dismissal to avoid a strike. (Id. at ¶ 2). Finally, Plaintiff was advised that his failure to 10 timely respond to the order would result in a recommendation that this case be dismissed for 11 Plaintiff’s failure to comply with a court order and prosecute this action. (Id. at ¶3). As of the 12 date of these Findings and Recommendations, Plaintiff has not filed a response to the Order to 13 Show Cause and the time to do so has lapsed.2 14 APPLICABLE LAW AND ANALSYIS 15 A. Failure to Exhaust Administrative Remedies 16 As noted in the Court’s Order to Show Cause, Plaintiff acknowledges on the face of his 17 Complaint that he did not complete the administrative process before filing the lawsuit. (Doc. 18 No. 1 at 4). Plaintiff was directed to address the exhaustion issue by responding to the Court’s 19 Order to Show Cause and did not do so. 20 Courts may dismiss a claim if failure to exhaust is clear on the face of the complaint. 21 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). The Prison Litigation Reform Act of 1995 22 requires: 23 No action shall be brought with respect to prison conditions under section 12983 of this title, or any other Federal law, by a prisoner 24 confined in any jail, prison, or other correctional facility until such administrative remedies as available are exhausted. 25 26 42 U.S.C. § 1997e(a); see also Ross v. Blake, 578 U.S. 632, 635 (2016). The availability of 27 2 As of the date of these Findings and Recommendations, 11 days has lapsed since the September 7, 2023 28 deadline, thus allowing sufficient time for mailing. 1 administrative remedies must be assessed at the time the prisoner filed his action. See Andres v. 2 Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017); see also Saddozai v. Davis, 35 F.4th 705 (9th Cir. 3 2022) (noting a plaintiff could supplement or amend his or her complaint after he or she exhausts 4 his administrative remedies). 5 The exhaustion procedures set forth by the California Department of Correction and 6 Rehabilitation (“CDCR”) requires an inmate to proceed through three formal levels of review 7 unless otherwise excused under the regulation to exhaust available remedies. See generally Cal. 8 Code Regs. tit. 15 § 3480-3486.3 (2020). Plaintiff admits on his Complaint form that he did not 9 complete the grievance process for the claim at issue. (See Doc. No. 1 at 4). More specifically, 10 in the section of the complaint form documenting the steps Plaintiff has taken to pursue his 11 administrative remedies, Plaintiff indicates he has appealed his claim to the highest level. (Id.). 12 However, when asked why he did not submit an appeal or request for administrative relief at any 13 level, Plaintiff states “they are left open” acknowledging on the face of the Complaint that his 14 administrative remedies are “left open” and not exhausted. (Id.). If a court concludes that a 15 prisoner failed to exhaust his available administrative remedies before filing a civil rights action, 16 the proper remedy is dismissal without prejudice. See Jones v. Bock, 549 U.S. 199, 223-24 17 (2007); Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). Thus, based on the face of the 18 complaint, this action should be dismissed without prejudice due to Plaintiff’s failure to exhaust 19 administrative remedies fully and properly before initiating this lawsuit. See Albino, 747 F.3d at 20 1166 (noting a court can also dismiss a case at screening “[i]n the rare event that a failure to 21 exhaust is clear on the face of the complaint.”). 22 B. Failure to Prosecute and/or Comply with a Court Order 23 Alternatively, Federal Rule of Civil Procedure 41(b) permits the court to involuntarily 24 dismiss an action when a litigant fails to prosecute an action or fails to comply with other Rules 25 or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 26 F.3d 884, 889 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which 27 correspond with Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to 28 comply with … any order of the Court may be grounds for the imposition by the Court of any and 1 all sanctions … within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts 2 have inherent power to control their dockets” and, in exercising that power, may impose 3 sanctions, including dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 4 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to 5 prosecute an action, obey a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 6 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a court order to 7 amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) 8 (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 9 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). In determining 10 whether to dismiss an action, the Court must consider the following factors: (1) the public’s 11 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the 12 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 13 merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. 14 King, 856 F.2d 1439, 1440 (9th Cir. 1988). 15 After considering each of the above-stated factors, the undersigned concludes dismissal 16 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 17 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 18 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 19 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 20 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 21 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates 22 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 23 Emergency in the Eastern District of California. This Court’s time is better spent on its other 24 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 25 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 26 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 27 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 28 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 1 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 2 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 3 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 4 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 5 the third factor weighs in favor of dismissal. 6 The fourth factor usually weighs against dismissal because public policy favors the 7 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 8 However, “this factor lends little support to a party whose responsibility it is to move a case 9 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 10 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 11 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 12 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 13 Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of 14 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 15 timely respond to court order and noting “the weight of the docket-managing factor depends upon 16 the size and load of the docket, and those in the best position to know what that is are our 17 beleaguered trial judges.”). Further, the Court’s August 4, 2023 Order to Show Cause found the 18 Complaint failed to state any cognizable claim. (See Doc. No. 10). Thus, this factor does not 19 weigh in Plaintiff’s favor. 20 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 21 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 22 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s August 4, 2023 Order to 23 Show Cause expressly warned Plaintiff that his failure to comply with the Court’s order would 24 result in the undersigned recommending the district court to dismiss this action for Plaintiff’s 25 failure to comply with a court order and prosecute this case. (See Doc. No. 10 at 9 ¶ 3). Thus, 26 Plaintiff had adequate warning that dismissal could result from his noncompliance. And the 27 instant dismissal is a dismissal without prejudice, which is a lesser sanction than a dismissal with 28 prejudice, thereby addressing the fifth factor. 1 After considering the factors set forth supra and binding case law, the undersigned 2 | recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 3 Accordingly, it is ORDERED: 4 The Clerk of the Court randomly assign this case to a District Judge. 5 It is further RECOMMENDED: 6 This case be DISMISSED without prejudice for Plaintiffs failure to exhaust his 7 | administrative remedies before initiating the instant action and/or this action be DISMISSED 8 | without prejudice for Plaintiff's failure to obey court orders and failure to prosecute. 9 NOTICE 10 These Findings and Recommendations will be submitted to the United States District 11 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(d). Within 14 days 12 | of the date of service of these Findings and Recommendations, a party may file written 13 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 14 | Findings and Recommendations.” A party’s failure to file objections within the specified time 15 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 16 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 | Dated: _ September 18, 2023 Wiha. □□ fares Zackte 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28