1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT CORTEZ, Case No.: 1:23-cv-01755-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR PLAINTIFF’S (1) 13 v. FAILURE TO STATE A CLAIM, (2) FAILURE TO EXHAUST REMEDIES, AND 14 K.V.S.P. WARDEN, et al., (3) FAILURE TO OBEY COURT ORDERS TO PROSECUTE 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign District Judge 17
18 Plaintiff Albert B. Cortez is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 On April 26, 2024, the Court issued its First Screening Order. (Doc. 9). The Court found 22 that Plaintiff’s complaint failed to state an Eighth Amendment failure to protect claim against any 23 defendant. In addition, Plaintiff’s complaint failed to identify how each defendant individually 24 violated the Eighth Amendment, as the complaint directed no allegations towards either the R&R 25 sergeant or the warden of Kern Valley State Prison. Id. at 9. Furthermore, Plaintiff failed to 26 exhaust administrative remedies or otherwise sufficiently plead that those remedies were 27 unavailable. Id. As a result, Plaintiff was ordered to do one of the following within 21 days of 1 identified by the Court in its screening order; or (2) file a notice of voluntary dismissal under Fed. 2 R. Civ. P. 41(a)(1)(A)(i). Despite the passage of more than 21 days, Plaintiff has failed to 3 respond to the Court’s First Screening Order in any way. 4 II. DISCUSSION 5 A. Legal Standard 6 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 7 “[f]ailure of counsel or of a party to comply with … any order of the Court may be grounds for 8 the imposition by the Court of any and all sanctions … within the inherent power of the Court.” 9 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 10 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 11 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 12 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 13 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 14 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 15 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 16 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 17 In determining whether to dismiss an action, the Court must consider several factors: 18 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 19 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 20 cases on their merits; and (5) the availability of less drastic sanctions. Carey v. King, 856 F.2d 21 1439, 1440 (9th Cir. 1988). 22 B. Analysis 23 Here, Plaintiff has failed to file either a first amended complaint or a notice of voluntary 24 dismissal. The Court cannot effectively manage its docket if Plaintiff ceases litigating his case. 25 Thus, the Court finds that both the first and second factors—the public’s interest in expeditious 26 resolution of litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 27 Carey, 856 F.2d at 1440. 1 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 2 524 (9th Cir. 1976). Here, the Court’s First Screening Order directed Plaintiff to file a first 3 amended complaint describing whether and how the named defendants (the KVSP warden, R&R 4 sergeant, and C-Yard sergeant) knew Plaintiff faced a substantial risk of serious harm, and 5 whether they were deliberately indifferent to the risk. (Doc. 9 p. 8). In addition, the Court 6 directed that any first amended complaint sufficiently allege either that Plaintiff had exhausted 7 administrative remedies available or that such remedies were unavailable. Id. The First 8 Screening Order informed Plaintiff that, in the alternative to filing a first amended complaint, he 9 file a notice of voluntary dismissal within 21 days. 10 Plaintiff has taken no action whatsoever in response to the First Screening Order. Because 11 Plaintiff has failed to comply with the First Screening Order, his inaction amounts to an 12 unreasonable delay in prosecuting this case resulting in a presumption of injury. Therefore, the 13 third factor—a risk of prejudice to defendants—also weighs in favor of dismissal. Carey, 856 14 F.2d at 1440. 15 The fourth factor usually weighs against dismissal because public policy favors 16 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 17 “this factor lends little support to a party whose responsibility it is to move a case toward 18 disposition on the merits but whose conduct impedes progress in that direction.” In re 19 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) 20 (citation omitted). By failing to file either a first amended complaint or a notice of voluntary 21 dismissal, Plaintiff is not moving this case forward and is impeding its progress. Thus, the fourth 22 factor—the public policy favoring disposition of cases on their merits—weighs in favor of 23 dismissal. Carey, 856 F.2d at 1440. 24 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 25 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. 26 The Court’s April 26, 2024, screening order expressly warned Plaintiff as follows: “If Plaintiff 27 fails to comply with this order, the Court will recommend that this action be dismissed, 1 | p. 10, emphasis in original). Finally, Plaintiff was also previously warned of the potential for 2 | dismissal for a failure to obey court orders in this Court’s First Informational Order In 3 | Prisoner/Civil Detainee Civil Rights Case, issued December 22, 2023, to wit: “In litigating this 4 | action, the parties must comply with this Order, the Federal Rules of Civil Procedure (‘Fed. R. 5 Civ. P.’), and the Local Rules of the United States District Court, Eastern District of California 6 | (‘Local Rules’), as modified by this Order. Failure to comply will be grounds for imposition of 7 | sanctions which may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (Doc. 8 | 4p. 1). Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance. 9 | Therefore, the fifth factor—the availability of less drastic sanctions—also weighs in favor of 10 | dismissal.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT CORTEZ, Case No.: 1:23-cv-01755-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR PLAINTIFF’S (1) 13 v. FAILURE TO STATE A CLAIM, (2) FAILURE TO EXHAUST REMEDIES, AND 14 K.V.S.P. WARDEN, et al., (3) FAILURE TO OBEY COURT ORDERS TO PROSECUTE 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign District Judge 17
18 Plaintiff Albert B. Cortez is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 On April 26, 2024, the Court issued its First Screening Order. (Doc. 9). The Court found 22 that Plaintiff’s complaint failed to state an Eighth Amendment failure to protect claim against any 23 defendant. In addition, Plaintiff’s complaint failed to identify how each defendant individually 24 violated the Eighth Amendment, as the complaint directed no allegations towards either the R&R 25 sergeant or the warden of Kern Valley State Prison. Id. at 9. Furthermore, Plaintiff failed to 26 exhaust administrative remedies or otherwise sufficiently plead that those remedies were 27 unavailable. Id. As a result, Plaintiff was ordered to do one of the following within 21 days of 1 identified by the Court in its screening order; or (2) file a notice of voluntary dismissal under Fed. 2 R. Civ. P. 41(a)(1)(A)(i). Despite the passage of more than 21 days, Plaintiff has failed to 3 respond to the Court’s First Screening Order in any way. 4 II. DISCUSSION 5 A. Legal Standard 6 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 7 “[f]ailure of counsel or of a party to comply with … any order of the Court may be grounds for 8 the imposition by the Court of any and all sanctions … within the inherent power of the Court.” 9 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 10 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 11 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 12 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 13 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 14 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 15 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 16 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 17 In determining whether to dismiss an action, the Court must consider several factors: 18 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 19 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 20 cases on their merits; and (5) the availability of less drastic sanctions. Carey v. King, 856 F.2d 21 1439, 1440 (9th Cir. 1988). 22 B. Analysis 23 Here, Plaintiff has failed to file either a first amended complaint or a notice of voluntary 24 dismissal. The Court cannot effectively manage its docket if Plaintiff ceases litigating his case. 25 Thus, the Court finds that both the first and second factors—the public’s interest in expeditious 26 resolution of litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 27 Carey, 856 F.2d at 1440. 1 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 2 524 (9th Cir. 1976). Here, the Court’s First Screening Order directed Plaintiff to file a first 3 amended complaint describing whether and how the named defendants (the KVSP warden, R&R 4 sergeant, and C-Yard sergeant) knew Plaintiff faced a substantial risk of serious harm, and 5 whether they were deliberately indifferent to the risk. (Doc. 9 p. 8). In addition, the Court 6 directed that any first amended complaint sufficiently allege either that Plaintiff had exhausted 7 administrative remedies available or that such remedies were unavailable. Id. The First 8 Screening Order informed Plaintiff that, in the alternative to filing a first amended complaint, he 9 file a notice of voluntary dismissal within 21 days. 10 Plaintiff has taken no action whatsoever in response to the First Screening Order. Because 11 Plaintiff has failed to comply with the First Screening Order, his inaction amounts to an 12 unreasonable delay in prosecuting this case resulting in a presumption of injury. Therefore, the 13 third factor—a risk of prejudice to defendants—also weighs in favor of dismissal. Carey, 856 14 F.2d at 1440. 15 The fourth factor usually weighs against dismissal because public policy favors 16 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 17 “this factor lends little support to a party whose responsibility it is to move a case toward 18 disposition on the merits but whose conduct impedes progress in that direction.” In re 19 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) 20 (citation omitted). By failing to file either a first amended complaint or a notice of voluntary 21 dismissal, Plaintiff is not moving this case forward and is impeding its progress. Thus, the fourth 22 factor—the public policy favoring disposition of cases on their merits—weighs in favor of 23 dismissal. Carey, 856 F.2d at 1440. 24 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 25 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. 26 The Court’s April 26, 2024, screening order expressly warned Plaintiff as follows: “If Plaintiff 27 fails to comply with this order, the Court will recommend that this action be dismissed, 1 | p. 10, emphasis in original). Finally, Plaintiff was also previously warned of the potential for 2 | dismissal for a failure to obey court orders in this Court’s First Informational Order In 3 | Prisoner/Civil Detainee Civil Rights Case, issued December 22, 2023, to wit: “In litigating this 4 | action, the parties must comply with this Order, the Federal Rules of Civil Procedure (‘Fed. R. 5 Civ. P.’), and the Local Rules of the United States District Court, Eastern District of California 6 | (‘Local Rules’), as modified by this Order. Failure to comply will be grounds for imposition of 7 | sanctions which may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (Doc. 8 | 4p. 1). Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance. 9 | Therefore, the fifth factor—the availability of less drastic sanctions—also weighs in favor of 10 | dismissal. Carey, 856 F.2d at 1440. 11 I. CONCLUSION AND RECOMMENDATIONS 12 The Clerk of the Court is DIRECTED to assign a district judge to this action. 13 Further, for the reasons set forth above, the undersigned RECOMMENDS that this action 14 | be DISMISSED without prejudice because the complaint fails to state cognizable claim, because 15 | Plaintiff failed to exhaust his administrative remedies, and for Plaintiff's failure to obey court 16 | orders and failure to prosecute. 17 These Findings and Recommendations will be submitted to the United States District 18 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 19 | of the date of service of these Findings and Recommendations, Plaintiff may file written 20 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 21 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 22 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 23 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 | IT IS SO ORDERED. > | Dated: _May 29, 2024 | Wr bo 26 UNITED STATES MAGISTRATE JUDGE 27 28