1 2 3 4 5 6 7 10 11 NORVELL ANDREW, Case No.: 1:22-cv-01290-KES-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION FOR PLAINTIFF’S 13 v. FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE 14 UNITED STATES OF AMERICA, et al.,
15 Defendants.
17 Plaintiff Norvell Andrew is a federal prisoner proceeding pro se and in forma pauperis in 18 this civil rights action. 19 I. INTRODUCTION 20 On May 6, 2024, this Court issued its Second Screening Order. (Doc. 35.) Specifically, 21 the Court determined that Plaintiff’s first amended complaint alleged cognizable Eighth 22 Amendment failure to protect claims against Defendants Barnes, Beaudreau, Bennett, Cervantes, 23 Ceja, Ciolli, Dewilde, Heldman, Haslett, Lopez, Lyons, McClure, Schaffer, Scott, Simpson, 24 Vandenover, and Zaragoza, as well as cognizable Eighth Amendment deliberate indifference to 25 serious medical needs claims against Defendants Palenteghi and Spheres; however, it failed to 26 allege any other cognizable claim against any other named defendant. (Id. at 5-17.) Plaintiff was 27 directed to do one of the following within 21 days: (1) to notify the Court in writing that she did 1 Amendment failure to protect claims against Defendants Barnes, Beaudreau, Bennett, Cervantes, 2 Ceja, Ciolli, Dewilde, Heldman, Haslett, Lopez, Lyons, McClure, Schaffer, Scott, Simpson, 3 Vandenover, and Zaragoza, and Eighth Amendment deliberate indifference to serious medical 4 needs claims against Defendants Palenteghi and Spheres; the remaining claims against any 5 defendant to be dismissed; or (2) to file a second amended complaint curing the deficiencies 6 identified by the Court; or (3) to file a notice of voluntary dismissal. (Id. at 17-19.) 7 When more than 21 days passed without Plaintiff making any filings in this action, on 8 June 5, 2024, the Court issued its Order to Show Cause (OSC) Why Action Should Not Be 9 Dismissed for Failure to Obey Court Order. (Doc. 37.) Plaintiff was ordered to show cause in 10 writing, within 14 days, why the action should not be dismissed for her failure to comply with the 11 Court’s May 6, 2024, order, or in the alternative, to comply with the Second Screening Order. (Id. 12 at 2-3.) More than 14 days have passed, and Plaintiff has failed to comply with or respond to the 13 OSC in any way. 15 Applicable Legal Standards 16 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 17 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 18 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 19 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 20 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 21 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 22 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 23 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 24 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 25 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 26 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 27 “In determining whether to dismiss an action for lack of prosecution, the district court is 1 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 2 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 3 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 4 citation omitted). These factors guide a court in deciding what to do and are not conditions that 5 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 6 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 7 Analysis 8 Here, Plaintiff has failed to respond to the Court’s May 6, 2024, and June 5, 2024, orders. 9 Plaintiff’s failure to respond to the Second Screening Order and to the OSC weigh in favor of 10 dismissal. The Court cannot effectively manage its docket if Plaintiff ceases litigating her case. 11 Thus, the first and second factors — the expeditious resolution of litigation and the Court’s need 12 to manage its docket — weigh in favor of dismissal. Carey, 856 F.2d at 1440. 13 The third factor weighs in favor of dismissal since a presumption of injury arises from the 14 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 15 (9th Cir. 1976). Here, the Court’s Second Screening Order directed Plaintiff to file a notice 16 indicating she was willing to proceed on her cognizable claims, or to file a second amended 17 complaint, or to file a notice of voluntary dismissal, within 21 days. And the OSC provided 18 Plaintiff with another opportunity to comply with the Second Screening Order. Nevertheless, 19 because Plaintiff has failed to comply with the Second Screening order and the OSC, her inaction 20 amounts to an unreasonable delay in prosecuting this case resulting in a presumption of injury. 21 Therefore, the third factor—a risk of prejudice to defendants—also weighs in favor of dismissal. 22 Carey, 856 F.2d at 1440. 23 The fourth factor usually weighs against dismissal because public policy favors 24 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 25 “this factor lends little support to a party whose responsibility it is to move a case toward 26 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 27 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. She has 1 favoring disposition of cases on their merits — also weighs in favor of dismissal. Carey, 856 F.2d 2 at 1440. 3 Finally, the Court’s warning to a party that failure to obey the court’s orders will result in 4 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. 5 Here, in the First Informational Order in Prisoner/Civil Detainee Civil Rights Case issued 6 October 11, 2023, Plaintiff was advised as follows: “In litigating this action, the parties must 7 comply with this Order, the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), and the Local 8 Rules of the United States District Court, Eastern District of California (“Local Rules”), as 9 modified by this Order. Failure to so comply will be grounds for imposition of sanctions which 10 may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (See Doc.
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1 2 3 4 5 6 7 10 11 NORVELL ANDREW, Case No.: 1:22-cv-01290-KES-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION FOR PLAINTIFF’S 13 v. FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE 14 UNITED STATES OF AMERICA, et al.,
15 Defendants.
17 Plaintiff Norvell Andrew is a federal prisoner proceeding pro se and in forma pauperis in 18 this civil rights action. 19 I. INTRODUCTION 20 On May 6, 2024, this Court issued its Second Screening Order. (Doc. 35.) Specifically, 21 the Court determined that Plaintiff’s first amended complaint alleged cognizable Eighth 22 Amendment failure to protect claims against Defendants Barnes, Beaudreau, Bennett, Cervantes, 23 Ceja, Ciolli, Dewilde, Heldman, Haslett, Lopez, Lyons, McClure, Schaffer, Scott, Simpson, 24 Vandenover, and Zaragoza, as well as cognizable Eighth Amendment deliberate indifference to 25 serious medical needs claims against Defendants Palenteghi and Spheres; however, it failed to 26 allege any other cognizable claim against any other named defendant. (Id. at 5-17.) Plaintiff was 27 directed to do one of the following within 21 days: (1) to notify the Court in writing that she did 1 Amendment failure to protect claims against Defendants Barnes, Beaudreau, Bennett, Cervantes, 2 Ceja, Ciolli, Dewilde, Heldman, Haslett, Lopez, Lyons, McClure, Schaffer, Scott, Simpson, 3 Vandenover, and Zaragoza, and Eighth Amendment deliberate indifference to serious medical 4 needs claims against Defendants Palenteghi and Spheres; the remaining claims against any 5 defendant to be dismissed; or (2) to file a second amended complaint curing the deficiencies 6 identified by the Court; or (3) to file a notice of voluntary dismissal. (Id. at 17-19.) 7 When more than 21 days passed without Plaintiff making any filings in this action, on 8 June 5, 2024, the Court issued its Order to Show Cause (OSC) Why Action Should Not Be 9 Dismissed for Failure to Obey Court Order. (Doc. 37.) Plaintiff was ordered to show cause in 10 writing, within 14 days, why the action should not be dismissed for her failure to comply with the 11 Court’s May 6, 2024, order, or in the alternative, to comply with the Second Screening Order. (Id. 12 at 2-3.) More than 14 days have passed, and Plaintiff has failed to comply with or respond to the 13 OSC in any way. 15 Applicable Legal Standards 16 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 17 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 18 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 19 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 20 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 21 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 22 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 23 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 24 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 25 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 26 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 27 “In determining whether to dismiss an action for lack of prosecution, the district court is 1 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 2 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 3 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 4 citation omitted). These factors guide a court in deciding what to do and are not conditions that 5 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 6 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 7 Analysis 8 Here, Plaintiff has failed to respond to the Court’s May 6, 2024, and June 5, 2024, orders. 9 Plaintiff’s failure to respond to the Second Screening Order and to the OSC weigh in favor of 10 dismissal. The Court cannot effectively manage its docket if Plaintiff ceases litigating her case. 11 Thus, the first and second factors — the expeditious resolution of litigation and the Court’s need 12 to manage its docket — weigh in favor of dismissal. Carey, 856 F.2d at 1440. 13 The third factor weighs in favor of dismissal since a presumption of injury arises from the 14 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 15 (9th Cir. 1976). Here, the Court’s Second Screening Order directed Plaintiff to file a notice 16 indicating she was willing to proceed on her cognizable claims, or to file a second amended 17 complaint, or to file a notice of voluntary dismissal, within 21 days. And the OSC provided 18 Plaintiff with another opportunity to comply with the Second Screening Order. Nevertheless, 19 because Plaintiff has failed to comply with the Second Screening order and the OSC, her inaction 20 amounts to an unreasonable delay in prosecuting this case resulting in a presumption of injury. 21 Therefore, the third factor—a risk of prejudice to defendants—also weighs in favor of dismissal. 22 Carey, 856 F.2d at 1440. 23 The fourth factor usually weighs against dismissal because public policy favors 24 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 25 “this factor lends little support to a party whose responsibility it is to move a case toward 26 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 27 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. She has 1 favoring disposition of cases on their merits — also weighs in favor of dismissal. Carey, 856 F.2d 2 at 1440. 3 Finally, the Court’s warning to a party that failure to obey the court’s orders will result in 4 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. 5 Here, in the First Informational Order in Prisoner/Civil Detainee Civil Rights Case issued 6 October 11, 2023, Plaintiff was advised as follows: “In litigating this action, the parties must 7 comply with this Order, the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), and the Local 8 Rules of the United States District Court, Eastern District of California (“Local Rules”), as 9 modified by this Order. Failure to so comply will be grounds for imposition of sanctions which 10 may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (See Doc. 7 at 1.) Next, 11 in the Second Screening Order, Plaintiff was advised as follows: “If Plaintiff fails to comply 12 with this order, the Court will recommend that this action be dismissed, without prejudice, 13 for failure to obey a court order and for failure to prosecute.” (Doc. 35 at 19, emphasis in 14 original.) And, in the OSC, Plaintiff was further cautioned: “Failure to comply with this Order 15 to Show Cause will result in a recommendation that this action be dismissed for Plaintiff’s 16 failure to obey court orders.” (Doc. 37 at 3, emphasis in original.) Therefore, the undersigned 17 finds Plaintiff had adequate warning that dismissal could result from her noncompliance with 18 court orders. Thus, the fifth factor — the availability of less drastic sanctions —weighs in favor 19 of dismissal. Ferdik, 963 F.2d at 1262; Carey, 856 F.2d at 1440. 20 In sum, Plaintiff has failed to comply with this Court’s orders, and in doing so, has failed 21 to prosecute this action. Whether Plaintiff has done so intentionally or mistakenly is 22 inconsequential. It is Plaintiff’s responsibility to comply with the Court’s orders and to prosecute 23 this action. The Court declines to expend its limited resources on a case that Plaintiff has chosen 24 to ignore. 26 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, without 27 prejudice, based on Plaintiff’s failure to obey court orders and failure to prosecute this action. 1 | this case, pursuant to 28 U.S.C. § 636(b)(). Within 14 days of the date of service of these 2 | Findings and Recommendations, a party may file written objections with the Court. The 3 | document should be captioned, “Objections to Magistrate Judge’s Findings and 4 | Recommendations.” Failure to file objections within the specified time may result in waiver of 5 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 6 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 | ITIS ORDERED. | Dated: _ June 27, 2024 | hr 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28