(PS) Lopez v. Chew ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PEGGY LOPEZ, No. 2:24-cv–00570-DAD-CKD (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 STEPHEN CHEW MD, 15 Defendant. 16 17 Plaintiff Peggy Lopez is proceeding in this action pro se. The action was accordingly 18 referred to the undersigned for pretrial matters by E.D. Cal. R. (“Local Rule”) 302(c)(21). On 19 June 7, 2024, the Court granted Plaintiff’s in forma pauperis (“IFP”) application and dismissed 20 the complaint with leave to amend. (ECF No. 3.) Plaintiff was granted thirty (30) days to file an 21 amended complaint and cautioned that failure to do so could lead to a recommendation that the 22 action be dismissed. Id. Plaintiff did not file an amended complaint within the time limit. On 23 August 19, 2024, the Court issued an order to show cause within fourteen (14) days why this case 24 should not be dismissed for failure to prosecute. (ECF No. 4.) Plaintiff has not responded to the 25 Court’s orders, nor taken any action to prosecute this case. 26 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 27 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 28 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 1 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may 2 act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. 3 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals under Rule 4 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a 5 district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 6 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil Procedure 7 41(b), the district court may dismiss an action for failure to comply with any order of the court.”); 8 Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) 9 (stating that district courts have inherent power to control their dockets and may impose sanctions 10 including dismissal or default). This Court’s Local Rules are in accord. See E.D. Cal. Local Rule 11 110 (“Failure of counsel or of a party to comply with these Rules or with any order of the Court 12 may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule 13 or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) (providing that a pro se 14 party’s failure to comply with the Federal Rules of Civil Procedure, the court’s Local Rules, and 15 other applicable law may support, among other things, dismissal of that party’s action). 16 A court must weigh five factors in determining whether to dismiss a case for failure to 17 prosecute, failure to comply with a court order, or failure to comply with a District Court’s local 18 rules. See Ferdik, 963 F.2d at 1260. These are: 19 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 20 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 21 (5) the availability of less drastic alternatives. 22 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 23 Here, the first two factors weigh in favor of dismissal, because this case was delayed by 24 Plaintiff’s failure to take the steps necessary to move this case forward. The third factor also 25 favors dismissal because there is a rebuttable presumption of prejudice to Defendant due to 26 Plaintiff’s delay. In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (When considering prejudice to 27 the defendant, the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 28 in the absence of a showing of actual prejudice to the defendant from the failure.... The law 1 || presumes injury from unreasonable delay.”). Plaintiff has failed to comply and respond to the 2 || Court’s attempts to move this action forward and has not provided an excuse for the lack of 3 || compliance at this stage in the proceedings. The fifth factor also favors dismissal because the 4 || Court has already attempted less drastic alternatives. Specifically, after the passage of time to file 5 || an amended complaint, and no additional action from Plaintiff, the Court attempted lesser 6 || sanctions and issued an order to show cause. However, Plaintiff has failed to respond, leaving the 7 || Court with little alternative but to recommend dismissal. 8 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 9 || factor is outweighed by the other Ferdik factors. Indeed, it is Plaintiff's own failure to prosecute 10 || the case and comply with the rules that precludes a resolution on the merits. Therefore, after 11 || carefully evaluating the Ferdik factors, the Court concludes that dismissal is appropriate. 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. Plaintiff's claims be DISMISSED without prejudice pursuant to Federal Rule of Civil 14 Procedure 41(b); and 15 2. The Clerk of Court be directed to close this case. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen (14) 18 || days after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 21 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 22 || objections. The parties are advised that failure to file objections within the specified time may 23 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 24 || 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 25 | Dated: September 13, 2024 / □□□ / 4 [iy ai 26 CAROLYNK. DELANEY 27 UNITED STATES MAGISTRATE JUDGE 28 || 4, lope0570.24