(PC) McGee v. Flores-Lopez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAISH MCGEE, Case No. 1:23-cv-01523-HBK (PC) 12 Plaintiff, ORDER TO RANDOMLY ASSIGN TO DISTRICT JUDGE 13 v. 14 G. FLORES-LOPEZ, C. REHKOPF, and F DI IN SD MI IN SSG S A A CTN ID O NR E WC IO TM HOM UE TN D PRA ET JI UO DN IS C T EO 1 A. FLORES, 15 14-DAY DEADLINE Defendants. 16 17 18 Plaintiff Isaish McGee is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action. For the reasons set forth below, the undersigned recommends that the District 20 Court dismiss this action without prejudice for Plaintiff’s failure to comply with a court order and 21 prosecute this action. 22 BACKGROUND 23 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983. 24 (Doc. No. 1, “Complaint”). On December 4, 2023, pursuant to 28 U.S.C. § 1915A the Court 25 issued a screening order finding the Complaint failed to state a federal claim against any 26 Defendant. (See generally Doc. No. 13). The Court afforded Plaintiff three options to exercise 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2023). 1 no later than January 18, 2024: (1) file an amended complaint; (2) file a notice that he intends to 2 stand on his Complaint subject to the undersigned recommending the district court dismiss for 3 reasons stated in the December 4, 2023 Screening Order; or (3) file a notice to voluntarily dismiss 4 this action, without prejudice, under Federal Rule of Civil Procedure 41(a)(1) because no 5 defendant had yet been served. (Id. at 9-10). Plaintiff was required to deliver his response to the 6 Court’s Screening Order to correctional officials for mailing no later than January 18, 2024. (Id. 7 at 10 ¶ 1). 8 The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order 9 or seek an extension of time to comply” the undersigned “will recommend that the district court 10 dismiss this case as a sanction for Plaintiff’s failure to comply with a court order and prosecute 11 this action.” (Id. ¶ 2). As of the date of this of these Findings and Recommendations, Plaintiff 12 has failed to submit a response to the Court’s December 4, 2023 Screening Order, or request a 13 further extension of time to comply, and the time to do so has expired. (See docket.) 14 APPLICABLE LAW AND ANALYSIS 15 A. Legal Standard 16 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 17 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 18 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 19 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 20 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . 21 any order of the Court may be grounds for the imposition by the Court of any and all sanctions 22 . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent 23 power to control their dockets” and, in exercising that power, may impose sanctions, including 24 dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th 25 Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey 26 a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 27 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone 28 v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with 1 a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure 2 to prosecute and to comply with local rules). In determining whether to dismiss an action, the 3 Court must consider the following factors: (1) the public’s interest in expeditious resolution of 4 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; 5 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 6 drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 7 1988). 8 B. Analysis 9 After considering each of the above-stated factors, the undersigned concludes dismissal 10 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 11 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 12 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 13 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 14 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 15 filling judicial vacancies, which was further exacerbated by the COVID-19 pandemic, operates 16 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 17 Emergency in the Eastern District of California. This Court’s time is better spent on its other 18 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 19 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 20 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 21 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 22 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 23 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 24 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 25 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 26 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 27 the third factor weighs in favor of dismissal. 28 The fourth factor usually weighs against dismissal because public policy favors the 1 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 2 However, “this factor lends little support to a party whose responsibility it is to move a case 3 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 4 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 5 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 6 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 7 Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of district court’s involuntary 8 dismissal with prejudice of habeas petition where petitioner failed to timely respond to court 9 order and noting “the weight of the docket-managing factor depends upon the size and load of the 10 docket, and those in the best position to know what that is are our beleaguered trial judges.”). 11 Further, as set forth in the Screening Order, the Court already determined that the Complaint, as 12 pled, failed to state a claim, so this factor does not weigh in favor of the Plaintiff. 13 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 14 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 15 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s December 4, 2023 Order 16 expressly twice warned Plaintiff that his failure to respond to the Court’s Order would result in a 17 recommendation of dismissal of this action. (Doc. 13 at 9, 10 ¶ 2). Thus, Plaintiff had adequate 18 warning that dismissal could result from his noncompliance. And the instant dismissal is a 19 dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 20 satisfying the fifth factor. 21 After considering the factors set forth supra and binding case law, the undersigned 22 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 23 Accordingly, it is hereby ORDERED: 24 The Clerk of Court randomly assign this case to a district judge for consideration of these 25 Findings and Recommendations. 26 It is further RECOMMENDED: 27 This action be DISMISSED without prejudice for Plaintiff’s failure to obey court orders 28 and failure to prosecute. 1 NOTICE 2 These Findings and Recommendations will be submitted to the United States District 3 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 4 | of the date of service of these Findings and Recommendations, a party may file written objections 5 || with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 6 | and Recommendations.” A party’s failure to file objections within the specified time may result in 7 | waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 8 || Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 Dated: _ Febrmary 8, 2024 Wile. Wh. arch Yack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28