(PC) Stuckey v. Nestle Corporation ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE KENNETH STUCKEY, Case No. 1:20-cv-00511-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. PROSECUTE AND FAILURE TO OBEY COURT ORDERS 14 NESTLE CORPORATION, et al., 14-DAY OBJECTION DEADLINE 15 Defendants. Clerk to Assign District Judge 16 17 18 Plaintiff Andre Kenneth Stuckey is proceeding pro se and in forma pauperis in this civil 19 rights action filed pursuant to 42 U.S.C. § 1983. 20 I. RELEVANT BACKGROUND 21 Plaintiff filed this action on April 10, 2020. (Doc. 1.)1 Following the Court’s first 22 screening order (Doc. 17) on September 25, 2020, Plaintiff filed a third amended complaint on 23 October 5, 2020 (Doc. 19). 24 On August 25, 2021, this Court denied Plaintiff’s motion to certify the case as a class 25 action and for leave to file a class action complaint. (Doc. 26.) 26 // 27 28 1 Plaintiff amended his complaint twice prior to screening. (See Docs. 13 & 15.) 1 On October 14, 2021, the Court issued a second screening order finding that Plaintiff’s 2 third amended complaint failed to state a claim upon which relief can be granted. (Doc. 27.) 3 The Court directed Plaintiff to file a fourth amended complaint curing the deficiencies in his 4 pleading or a notice of voluntary dismissal, within 21 days (Id. at 9.) 5 On November 24, 2021, when Plaintiff failed to file his fourth amended complaint, an 6 Order to Show Cause (OSC) issued. Plaintiff was given 21 days within which to respond in 7 writing. (Doc. 28.) 8 On December 17, 2021, the Court discharged the OSC following Plaintiff’s motion for a 9 30-day extension of time, (Doc. 29), to comply with the second screening order. (Doc. 30.) 10 Plaintiff was ordered to file the fourth amended complaint no later than January 12, 2022. (Id. at 11 1-2.) 12 On January 10, 2022, Plaintiff moved for a second extension of time of 30 days. (Doc. 13 31.) The Court granted the motion and directed Plaintiff to file his fourth amended complaint no 14 later than February 11, 2022. (Doc. 32.) 15 On February 9, 2022, Plaintiff moved for a third extension of time. (Doc. 33.) The Court 16 granted the extension and ordered Plaintiff to file his fourth amended complaint by March 25, 17 2022. (Doc. 34.) On March 30, 2022, Plaintiff filed a document titled “Plaintiff’s Motion for 18 Nunc Pro Tunc Order to Stay this Case Pending the Plaintiff’s Upcoming Release.” (Doc. 35.) 19 On April 5, 2022, the Court denied Plaintiff’s motion for stay, and granted a fourth 20 extension of time within which to file a fourth amended complaint. (Doc. 36.) The Court provided 21 Plaintiff an additional 90 days from the date of service of the order within which to file his fourth 22 amended complaint. (Id. at 2-3.) Plaintiff was cautioned that his failure to file an amended 23 complaint would result in a recommendation that this action be dismissed for a failure to 24 prosecute and a failure to obey court orders. (Id. at 3.) 25 After more than 90 days passed without Plaintiff filing his fourth amended complaint, the 26 Court issued another OSC, requiring Plaintiff to respond in writing to show cause why the action 27 should not be dismissed for his failure to comply. (Doc. 37.) Plaintiff was afforded 21 days within 28 which to reply to the OSC. (Id. at 2.) 1 More than 21 days2 have passed without a response from Plaintiff. The Court’s docket 2 reflects that mail directed to Plaintiff at Pelican Bay State Prison was returned to this Court 3 marked “Undeliverable, RTS, Not Deliverable” as of July 29, 2022. 4 Because Plaintiff has failed to comply with this Court’s orders and has failed to prosecute 5 this action, the Court will recommend the action be dismissed. 6 II. DISCUSSION 7 A. Legal Standards 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. Henderson, 779 F.2d at 23 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 24 B. Analysis 25 Plaintiff has failed to comply with the Court’s April 5 and July 11, 2022, orders. In 26 October 2021, Plaintiff was ordered to file a fourth amended complaint, curing the deficiencies 27 28 2 8/8/22 – 7/11/22 = 28 days. 1 identified in the Court’s second screening order. (Doc. 27.) Despite having been afforded more 2 than 160 days within which to comply,3 Plaintiff failed to file his fourth amended complaint. 3 When afforded another 90 days within which to file the fourth amended complaint, Plaintiff again 4 failed to respond in any way. That failure led to the issuance of another OSC, affording Plaintiff 5 21 additional days within which to respond in writing. Plaintiff again failed to respond. The Court 6 cannot effectively manage its docket if Plaintiff ceases litigating his case—as Plaintiff has done 7 here. The Court therefore finds that both the first and second factors—the public’s interest in 8 expeditious resolution of litigation and the Court’s need to manage its docket—weigh in favor of 9 dismissal. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d at 1440. 10 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal since a 11 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 12 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Plaintiff’s inaction—where more than 270 13 days4 have elapsed following the Court’s second screening order permitting the filing of a fourth 14 amended complaint—amounts to an unreasonable delay in prosecuting this action, weighing in 15 favor of dismissal for a risk of prejudice to defendants. Anderson v. Air W., 542 F.2d at 524; 16 Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d at 1440. 17 The fourth factor usually weighs against dismissal because public policy favors 18 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 19 “this factor lends little support to a party whose responsibility it is to move a case toward 20 disposition on the merits but whose conduct impedes progress in that direction.” In re 21 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) 22 (citation omitted); Henderson v. Duncan, 779 F.2d at 1424. Despite his responsibility, Plaintiff 23 has made little to no effort to move this case forward, and his failure to respond impedes progress 24 toward disposition on the merits. Thus, the fourth factor weighs in favor of dismissal. 25 Regarding the last factor, a court’s warning to a party that failure to obey the court’s order 26 27 3 3/25/22 (date 4AC due following four EOTs) – 10/14/21 (second screening order) = 162 days. 28 4 8/8/22 (today’s date) – 11/4/21 (original due date following second screening order) = 277 days. 1 will result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 2 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. In its April 5, 2022 3 Order, the Court stated: “If Plaintiff fails to file an amended complaint in compliance with 4 this order, the Court will recommend dismissal of this action, with prejudice, for failure to 5 obey a court order and failure to state a claim.” (Doc. 36 at 3.) Additionally, the Court’s OSC 6 of July 11, 2022, included the following: “WARNING: Failure to comply with this order will 7 result in a recommendation that this action be dismissed for failure to obey court orders 8 and for a failure to prosecute.” (Doc. 37 at 3.)5 Thus, the fifth factor weighs in favor of 9 dismissal because Plaintiff has received adequate warning that dismissal could result from his 10 noncompliance. 11 In sum, Plaintiff has failed to comply with the applicable Local Rules and this Court’s 12 specific orders. In so doing, Plaintiff fails to prosecute this action. Ferdik, 963 F.2d at 1260-61; 13 Henderson v. Duncan, 779 F.2d at 1424. As a result, the undersigned will recommend this action 14 be dismissed. 15 III. CONCLUSION AND RECOMMENDATIONS 16 For the reasons set forth above, the Court RECOMMENDS that this action be 17 DISMISSED, without prejudice, for Plaintiff’s failure to prosecute and failure to obey court 18 orders. The Clerk of the Court is DIRECTED to assign a District Judge to this action. 19 These Findings and Recommendations will be submitted to the United States District 20 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 21 of the date of service of these Findings and Recommendations, Plaintiff may file written 22 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 23 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 24 25 // 26 // 27 5 Plaintiff was also warned that dismissal could result for a failure to obey court orders when the Court 28 granted his three previous motions for extension of time. (See Doc. 30 at 2; Doc. 32 at 2; Doc. 34 at 2.) 1 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4 5 Dated: August 9, 2022 /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 28