1 2 3 4 5 6 7 10 11 RAYMOND CALLOWAY, Case No. 1:23-cv-00034-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. 14 CDCR, L. LUNDY, T. VALDEZ, and H. FINDINGS AND RECOMMENDATIONS TO MOSELEY, DISMISS ACTION WITHOUT PREJUDICE1 15 Defendants. 14-DAY DEADLINE 16 17 Plaintiff Raymond Calloway is a state prisoner proceeding pro se in this civil rights action. 18 For the reasons set forth below, the undersigned recommends that the District Court dismiss this 19 action without prejudice for Plaintiff’s failure to comply with a court order and prosecute this 20 action. 22 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983. 23 (Doc. No. 1, “Complaint”). After an initial screening pursuant to 28 U.S.C. § 1915A, in which 24 the Court found Plaintiff’s original complaint failed to state a claim, (Doc. No. 7), Plaintiff filed a 25 first amended complaint (Doc. No. 10, “FAC”). On September 12, 2023, the Court issued a 26 second screening order, finding the FAC failed to state a claim against any of the named 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. 2022). 1 Defendants. (See generally Doc. No. 11). The Court afforded Plaintiff three options: (1) file an 2 amended complaint; (2) file a notice that he intends to stand on his initial complaint subject to the 3 undersigned recommending the district court dismiss for reasons stated in the September 12, 2023 4 Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, under 5 Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 9-10). 6 The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order or seek 7 an extension of time to comply” the undersigned “will recommend that the district court dismiss 8 this case as a sanction for Plaintiff’s failure to comply with a court order and prosecute this 9 action.” (Id. at 10 ¶ 2). As of the date of this Findings and Recommendation, Plaintiff has not 10 filed any response to the Court’s September 12, 2023 screening order and the time to do so has 11 passed.2 (See docket.) 13 A. Legal Standard 14 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 15 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 16 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 17 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 18 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . 19 any order of the Court may be grounds for the imposition by the Court of any and all sanctions 20 . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent 21 power to control their dockets” and, in exercising that power, may impose sanctions, including 22 dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th 23 Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey 24 a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 25 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone 26 v.U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with 27 2 As of the date of this Findings and Recommendation, fifty-five days have elapsed since the Court issued its September 12, 2023 screening order, thus affording Plaintiff ample time to respond while accounting for mailing 28 delays. 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).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 10 11 RAYMOND CALLOWAY, Case No. 1:23-cv-00034-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. 14 CDCR, L. LUNDY, T. VALDEZ, and H. FINDINGS AND RECOMMENDATIONS TO MOSELEY, DISMISS ACTION WITHOUT PREJUDICE1 15 Defendants. 14-DAY DEADLINE 16 17 Plaintiff Raymond Calloway is a state prisoner proceeding pro se in this civil rights action. 18 For the reasons set forth below, the undersigned recommends that the District Court dismiss this 19 action without prejudice for Plaintiff’s failure to comply with a court order and prosecute this 20 action. 22 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983. 23 (Doc. No. 1, “Complaint”). After an initial screening pursuant to 28 U.S.C. § 1915A, in which 24 the Court found Plaintiff’s original complaint failed to state a claim, (Doc. No. 7), Plaintiff filed a 25 first amended complaint (Doc. No. 10, “FAC”). On September 12, 2023, the Court issued a 26 second screening order, finding the FAC failed to state a claim against any of the named 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. 2022). 1 Defendants. (See generally Doc. No. 11). The Court afforded Plaintiff three options: (1) file an 2 amended complaint; (2) file a notice that he intends to stand on his initial complaint subject to the 3 undersigned recommending the district court dismiss for reasons stated in the September 12, 2023 4 Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, under 5 Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 9-10). 6 The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order or seek 7 an extension of time to comply” the undersigned “will recommend that the district court dismiss 8 this case as a sanction for Plaintiff’s failure to comply with a court order and prosecute this 9 action.” (Id. at 10 ¶ 2). As of the date of this Findings and Recommendation, Plaintiff has not 10 filed any response to the Court’s September 12, 2023 screening order and the time to do so has 11 passed.2 (See docket.) 13 A. Legal Standard 14 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 15 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 16 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 17 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 18 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . 19 any order of the Court may be grounds for the imposition by the Court of any and all sanctions 20 . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent 21 power to control their dockets” and, in exercising that power, may impose sanctions, including 22 dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th 23 Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey 24 a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 25 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone 26 v.U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with 27 2 As of the date of this Findings and Recommendation, fifty-five days have elapsed since the Court issued its September 12, 2023 screening order, thus affording Plaintiff ample time to respond while accounting for mailing 28 delays. 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 September 12, 2023, Screening Order, the Court already determined 12 that the FAC, as pled, failed to state a claim, so this factor does not weigh in favor of the Plaintiff. 13 (See Doc. No. 11). 14 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 15 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 16 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s September 12, 2023, 17 screening order expressly warned Plaintiff that his failure to comply with the Court’s order would 18 result in a recommendation for dismissal of this action. (Doc. No. 11 at 10 ¶ 2). Thus, Plaintiff 19 had adequate warning that dismissal could result from his noncompliance. And the instant 20 dismissal is a dismissal without prejudice, which is a lesser sanction than a dismissal with 21 prejudice, thereby satisfying the fifth factor. 22 After considering the factors set forth supra and binding case law, the undersigned 23 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 24 Accordingly, it is ORDERED: 25 The Clerk of Court is directed to assign a district judge to this case. 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. 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 10 Dated: _ November 6, 2023 Gow ZA. Bareh Zack 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