Despres v. McMillian

Opinion

LISA DESPRES, Case No. 1:23-cv-00525-HBK

Plaintiff, ORDER DIRECTING CLERK TO ASSIGN v. CASE TO DISTRICT JUDGE

FINDINGS AND RECOMMENDATION GRANT, PREJUDICE FOR FAILURE TO Defendants.

14-DAY DEADLINE

Plaintiff Lisa Despres proceeds pro se and in forma pauperis in this civil action. (Doc. Nos. 1, 4). For the reasons set forth below, the undersigned recommends the District Court dismiss this action without prejudice for Plaintiff’s failure to prosecute this action and/or comply with a court order. On April 5, 2023, Plaintiff initiated this action by filing a pro se “Complaint for a Civil Case” form. (Doc. No. 1, “Complaint’). On April 20, 2023, the undersigned issued a screening order pursuant to 28 U.S.C. § 1915(e)(2)(B), finding the Complaint failed to establish this Court had jurisdiction over Plaintiff’s claims. (Doc. No. 5, “Screening Order”). The undersigned afforded Plaintiff the opportunity to file an amended complaint, file a notice that she intends to stand on her Complaint subject to the undersigning recommending the district court dismiss this case for the reasons set forth in the Screening Order, or file a notice of voluntary dismissal. (Id. at 4). The undersigned gave Plaintiff until May 22, 2023 to comply with the Court’s April 20, 2023 Screening Order. (Id. at 1, 5). Plaintiff was expressly warned that if she failed to timely comply with the Screening Order or seek an extension of time to comply, the undersigned would recommend the district court dismiss this action for Plaintiff’s failure to prosecute this action and comply with the Screening Order. (Id. at 5, ¶2). Plaintiff has not responded to the Screening Order and the time to do so has expired.1 See docket. A. Legal Standard Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … any order of the Court may be grounds for the imposition by the Court of any and all sanctions … within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control their dockets” and, in exercising that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). In determining whether to dismiss an action, the Court must consider several factors: (1)

1 Plaintiff is not incarcerated and not entitled to the mailbox rule. Nonetheless, the undersigned afforded the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). B. Analysis The undersigned considers each of the above-stated factors and concludes dismissal is warranted in this case. As to the first factor, the expeditious resolution of litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). Turning to the second factor, this Court’s need to efficiently manage its docket cannot be overstated. This Court has “one of the heaviest caseloads in the nation,” and due to delay in filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial Emergency in the Eastern District of California. This Court’s time is better spent on its other matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot effectively manage its docket when a litigate ceases to prosecute an action. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. Delays inevitably have the inherent risk that evidence will become stale or witnesses’ memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor, risk of prejudice to defendant, also weighs in favor of dismissal since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, weighing in favor of dismissal for a risk of prejudice to defendants. Finally, the fourth factor usually weighs against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility it is to move a case toward here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to timely respond to court order and noting “the weight of the docket-managing factor depends upon the size and load of the docket, and those in the best position to know what that is are our beleaguered trial judges.”). Further, the Screening Order noted the Complaint was deficient and failed to establish that this Court had jurisdiction to consider Plaintiff’s claim. (Doc. No. 5). Thus, the Complaint does not appear to be meritorious. Finally, the Court’s warning to a party that failure to obey the court’s order will result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. As noted, supra, the Court’s Screening Order expressly warned Plaintiff the Court would recommend a dismissal of this action if she failed to timely respond. Thus, Plaintiff had adequate warning that dismissal could result from her noncompliance. And the instant dismissal is a dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. After considering the factors set forth supra and binding case law, the undersigned recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. Accordingly, it is ORDERED: The Clerk of the Court randomly assign this case to a District Judge. It is further RECOMMENDED: This action be DISMISSED without prejudice for Plaintiff’s failure to prosecute this case and/or obey a court order. These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff's failure to file objections within the specified time may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). ° | Dated: _ June 1, 2023 Wihaw. Th. PoareA fackt HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE