(PC)Facundo v. Hill ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOE FACUNDO, Case No. 1:22-cv-00285-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT 13 v. PREJUDICE FOR FAILURE TO OBEY COURT ORDERS AND FAILURE TO 14 HILL, et al., PROSECUTE 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign District Judge 17 Plaintiff Joe Facundo is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 On March 1, 2023, the Court issued its First Screening Order. (Doc. 9.) The Court 21 determined Plaintiff’s complaint plausibly alleged an Eighth Amendment failure to protect 22 violation against Defendant Hill. However, Plaintiff’s complaint failed to state any other 23 cognizable claim against any other named Defendant. (Id. at 4-6.) The Court directed Plaintiff to 24 elect one of the following options: (1) to file a first amended complaint curing the deficiencies 25 identified in the order; or (2) to file a notice indicating he does not wish to file a first amended 26 complaint and instead wishes to proceed only on his Eighth Amendment failure to protect claim 27 against Defendant Hill; or (3) to file a notice of voluntary dismissal. (Id. at 7.) Plaintiff was to do 1 On April 3, 2023, the Court issued its Order to Show Cause (OSC) Why Action Should 2 Not Be Dismissed For Failure To Obey Court Orders. (Doc. 10.) Plaintiff was directed to respond 3 in writing to the OSC, or, alternatively, to file a first amended complaint, or a notice to proceed 4 on the claim found cognizable by the Court, or a notice of voluntary dismissal. (Id. at 2.) He was 5 ordered to respond within 21 days of the date of service of the OSC. (Id.) He has failed to do so. 6 II. DISCUSSION 7 A. Legal Standard 8 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 9 “[f]ailure of counsel or of a party to comply with … any order of the Court may be grounds for 10 the imposition by the Court of any and all sanctions … within the inherent power of the Court.” 11 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 12 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 13 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 14 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 15 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 16 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 17 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 18 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 19 In determining whether to dismiss an action, the Court must consider several factors: 20 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 21 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 22 cases on their merits; and (5) the availability of less drastic sanctions. Carey v. King, 856 F.2d 23 1439, 1440 (9th Cir. 1988). 24 B. Analysis 25 Plaintiff has failed to file a first amended complaint, or a notice to proceed on the claim 26 found cognizable by the Court, or a notice of voluntary dismissal, as directed in the screening 27 order. Nor has Plaintiff responded to the OSC. The Court cannot effectively manage its docket if 1 the public’s interest in expeditious resolution of litigation and the Court’s need to manage its 2 docket—weigh in favor of dismissal. Carey, 856 F.2d at 1440. 3 The third factor weighs in favor of dismissal since a presumption of injury arises from the 4 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 5 (9th Cir. 1976). Here, the Court’s First Screening Order issued March 1, 2023. (Doc. 9.) The 6 Court determined Plaintiff had plausibly alleged an Eighth Amendment failure to protect 7 violation against Defendant Hill. However, Plaintiff’s complaint failed to state any other 8 cognizable claim against any other named Defendant. Plaintiff was ordered to elect one of three 9 options: (1) file a first amended complaint, (2) file a notice indicating a wish to proceed on the 10 cognizable claim, or (3) file a notice of voluntary dismissal. (Id. at 7.) 11 Plaintiff has failed to comply in any way. He has not amended his complaint, and has not 12 filed notice of an election to proceed on the cognizable claim or a notice of voluntary dismissal. 13 Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action resulting in a 14 presumption of injury. Therefore, the third factor, a risk of prejudice to defendants, also weighs in 15 favor of dismissal. Carey, 856 F.2d at 1440. 16 The fourth factor usually weighs against dismissal because public policy favors 17 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 18 “this factor lends little support to a party whose responsibility it is to move a case toward 19 disposition on the merits but whose conduct impedes progress in that direction.” In re 20 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) 21 (citation omitted). By failing to file an amended complaint, a notice to proceed, or a notice of 22 voluntary dismissal, Plaintiff is not moving this case forward and is impeding its progress. Thus, 23 the fourth factor—the public policy favoring disposition of cases on their merits—weighs in favor 24 of dismissal. Carey, 856 F.2d at 1440. 25 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 26 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. 27 In the Court’s First Informational Order in Prisoner/Civil Detainee Civil Rights Case issued 1 comply with this Order, the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), and the Local 2 Rules of the United States District Court, Eastern District of California (“Local Rules”), as 3 modified by this Order. Failure to so comply will be grounds for imposition of sanctions which 4 may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (Doc. 4 at 1.) In its 5 First Screening Order issued March 1, 2023, Plaintiff was cautioned: “If Plaintiff fails to comply 6 with this order, the Court will recommend that this action be dismissed, without prejudice, 7 for failure to obey a court order and for failure to prosecute.” (Doc. 9 at 7-8.) Finally, in the 8 OSC issued April 3, 2023, the Court stated: “WARNING: Failure to comply with this Order to 9 Show Cause (OSC) will result in a recommendation that this action be dismissed without 10 prejudice for Plaintiff’s failure to obey court orders and failure to prosecute.” (Doc. 10 at 2.) 11 Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance. 12 Therefore, the fifth factor—the availability of less drastic sanctions—also weighs in favor of 13 dismissal. Carey, 856 F.2d at 1440. 14 In sum, Plaintiff has failed to comply with the Court’s orders, and in doing so, has failed 15 to prosecute this action. Whether Plaintiff has done so intentionally or mistakenly is 16 inconsequential. It is Plaintiff’s responsibility to comply with the Court’s orders and to prosecute 17 this action. The Court declines to expend its limited resources on a case that Plaintiff has chosen 18 to ignore. 19 III. CONCLUSION AND RECOMMENDATIONS 20 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 21 For the reasons given above, the Court RECOMMENDS that this action be DISMISSED 22 without prejudice for Plaintiff’s failure to obey court orders and failure to prosecute. 23 These Findings and Recommendations will be submitted to the district judge assigned to 24 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 25 Findings and Recommendations, a party may file written objections with the Court. The 26 document should be captioned, “Objections to Magistrate Judge’s Findings and 27 Recommendations.” Failure to file objections within the specified time may result in waiver of 1 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4 5 Dated: May 1, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27