1 2 3 4 5 6 7 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00785-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 13 v. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS1 14 STATE OF CALIFORNIA, et al., OBJECTIONS DUE WITHIN TWENTY-ONE 15 Defendants. DAYS
16 17 18 19 This matter comes before the Court upon periodic review. As more fully set forth below, 20 the undersigned recommends this case be dismissed without prejudice due to Plaintiff’s failure to 21 prosecute this action and timely comply with the Court’s orders. 23 Plaintiff Allen Hammler, a current state prisoner, initiated this action by filing a pro se 24 civil rights complaint under 42 U.S.C. § 1983 on June 4, 2019. (Doc. No. 1). Hammler’s 25 complaint stems from events that occurred on February 21, 2019 and March 13, 2019, when he 26 was allegedly served improper meals and assaulted after he put his hand through a food port door. 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. 2019). 1 (See generally Id.). On August 13, 2019, the former magistrate judge issued Findings and 2 Recommendations (“F&R”) to deny Hammler’s motion to proceed in forma pauperis pursuant to 3 28 U.S.C. § 1915(g). (Doc. No. 10). The F&R was adopted on December 6, 2019. (Doc. No. 4 13). On November 16, 2020, upon reconsideration, the December 6, 2019 order was vacated, and 5 Hammler was permitted an opportunity to file an amended complaint to address whether he met 6 the imminent danger exception to proceed in forma pauperis. (Doc. No. 20). Specifically, the 7 District Court instructed Hammler within 45 days “to file an amended complaint including all 8 factual asserted [sic] in his motions for reconsideration in support of his contention that he was in 9 ‘imminent danger’ at the time his complaint was filed so that the assigned magistrate judge can 10 consider that issue based upon all of the facts that plaintiff can allege in good faith.” (Id. at 2). 11 On January 25, 2021, Hammler untimely moved for an extension of time to comply with 12 the Court’s November 16, 2020 Order and file his amended complaint. (Doc. No. 24). On March 13 17, 2021, the Court granted Hammler an extension of time, until April 23, 2021, to comply with 14 the November 16, 2020 Order or face “dismissal of this action for failure to prosecute and timely 15 comply with the court’s orders.” (Doc. No. 27 at 2-3). With that Order, the Court also provided 16 Hammler with a courtesy copy of his motion for reconsideration and supplemental motion for 17 reconsideration for use in preparing his amended complaint. (Id. at 3, ¶ 1). On April 25, 2021, 18 Hammler again untimely2 moved for an additional 30-day extension of time to amend his 19 complaint. (Doc. No. 29). Hammler claimed he was relocated as a result of a mental health 20 episode and lost access to his legal materials; and, thus was unable to prepare any legal 21 documents due to his diminished mental capacity. (Id. at 2). Hammler represented in his motion 22 that he now had his “affairs in [o]rder” and was “able to [f]reely continue” to amend his 23 complaint. (Id. at 2-3). Based on Hammler’s representations that he could timely amend his 24 complaint, the Court afforded him a second extension of time, until May 25, 2021, to file his 25 amended complaint. (Doc. No. 30). In its Order, the Court emphasized that “no further 26 2 The Court applies the “prison mailbox rule” to pro se prisoner petitions, deeming the petition filed on the 27 date the prisoner delivers it to prison authorities for forwarding to the clerk of court. See Saffold v. Newland, 250 F.3d 1262, 1265, 1268 (9th Cir.2000), overruled on other grounds, Carey v. Saffold, 536 28 U.S. 214 (2002). Even affording Plaintiff the benefit of the mailbox rule, the motion was untimely. 1 extensions [would] be granted absent extraordinary circumstances” and that Hammler’s failure to 2 timely file an amended complaint would result in a recommendation of dismissal of the case. (Id. 3 at 2). Instead of timely filing an amended complaint, Hammler filed a “Motion for Judicial 4 Notice and to Limit Scope of Use” on May 17, 2021. (Doc. No. 31). Hammler also untimely 5 moved on June 9, 2021 for a third extension of time to amend his complaint. (Doc. No. 33). The 6 Court denied that motion, finding Hammler had not shown good cause or excusable neglect to 7 warrant any further extensions. (Doc. No. 34). Hammler has not filed an amended complaint as 8 of the date of these Findings and Recommendations. (See docket). 10 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 11 when a litigant fails to prosecute an action or fails to comply with a court order. See Fed. R. Civ. 12 P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations 13 omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 14 (“[T]he consensus among our sister circuits, with which we agree, is that courts may dismiss 15 under Rule 41(b) sua sponte, at least under certain circumstances.”). Local Rule 110 similarly 16 permits the court to impose sanctions on a party who fails to comply with any order of the court. 17 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 18 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 19 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 20 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 21 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 22 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 23 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 24 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 25 five factors and independently reviewing the record because district court did not make finding as 26 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 27 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 28 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 2 reiterating that an explicit finding of each factor is not required by the district court). 4 The undersigned considers each of the above-stated factors and concludes dismissing this 5 case is warranted.
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1 2 3 4 5 6 7 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00785-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 13 v. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS1 14 STATE OF CALIFORNIA, et al., OBJECTIONS DUE WITHIN TWENTY-ONE 15 Defendants. DAYS
16 17 18 19 This matter comes before the Court upon periodic review. As more fully set forth below, 20 the undersigned recommends this case be dismissed without prejudice due to Plaintiff’s failure to 21 prosecute this action and timely comply with the Court’s orders. 23 Plaintiff Allen Hammler, a current state prisoner, initiated this action by filing a pro se 24 civil rights complaint under 42 U.S.C. § 1983 on June 4, 2019. (Doc. No. 1). Hammler’s 25 complaint stems from events that occurred on February 21, 2019 and March 13, 2019, when he 26 was allegedly served improper meals and assaulted after he put his hand through a food port door. 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. 2019). 1 (See generally Id.). On August 13, 2019, the former magistrate judge issued Findings and 2 Recommendations (“F&R”) to deny Hammler’s motion to proceed in forma pauperis pursuant to 3 28 U.S.C. § 1915(g). (Doc. No. 10). The F&R was adopted on December 6, 2019. (Doc. No. 4 13). On November 16, 2020, upon reconsideration, the December 6, 2019 order was vacated, and 5 Hammler was permitted an opportunity to file an amended complaint to address whether he met 6 the imminent danger exception to proceed in forma pauperis. (Doc. No. 20). Specifically, the 7 District Court instructed Hammler within 45 days “to file an amended complaint including all 8 factual asserted [sic] in his motions for reconsideration in support of his contention that he was in 9 ‘imminent danger’ at the time his complaint was filed so that the assigned magistrate judge can 10 consider that issue based upon all of the facts that plaintiff can allege in good faith.” (Id. at 2). 11 On January 25, 2021, Hammler untimely moved for an extension of time to comply with 12 the Court’s November 16, 2020 Order and file his amended complaint. (Doc. No. 24). On March 13 17, 2021, the Court granted Hammler an extension of time, until April 23, 2021, to comply with 14 the November 16, 2020 Order or face “dismissal of this action for failure to prosecute and timely 15 comply with the court’s orders.” (Doc. No. 27 at 2-3). With that Order, the Court also provided 16 Hammler with a courtesy copy of his motion for reconsideration and supplemental motion for 17 reconsideration for use in preparing his amended complaint. (Id. at 3, ¶ 1). On April 25, 2021, 18 Hammler again untimely2 moved for an additional 30-day extension of time to amend his 19 complaint. (Doc. No. 29). Hammler claimed he was relocated as a result of a mental health 20 episode and lost access to his legal materials; and, thus was unable to prepare any legal 21 documents due to his diminished mental capacity. (Id. at 2). Hammler represented in his motion 22 that he now had his “affairs in [o]rder” and was “able to [f]reely continue” to amend his 23 complaint. (Id. at 2-3). Based on Hammler’s representations that he could timely amend his 24 complaint, the Court afforded him a second extension of time, until May 25, 2021, to file his 25 amended complaint. (Doc. No. 30). In its Order, the Court emphasized that “no further 26 2 The Court applies the “prison mailbox rule” to pro se prisoner petitions, deeming the petition filed on the 27 date the prisoner delivers it to prison authorities for forwarding to the clerk of court. See Saffold v. Newland, 250 F.3d 1262, 1265, 1268 (9th Cir.2000), overruled on other grounds, Carey v. Saffold, 536 28 U.S. 214 (2002). Even affording Plaintiff the benefit of the mailbox rule, the motion was untimely. 1 extensions [would] be granted absent extraordinary circumstances” and that Hammler’s failure to 2 timely file an amended complaint would result in a recommendation of dismissal of the case. (Id. 3 at 2). Instead of timely filing an amended complaint, Hammler filed a “Motion for Judicial 4 Notice and to Limit Scope of Use” on May 17, 2021. (Doc. No. 31). Hammler also untimely 5 moved on June 9, 2021 for a third extension of time to amend his complaint. (Doc. No. 33). The 6 Court denied that motion, finding Hammler had not shown good cause or excusable neglect to 7 warrant any further extensions. (Doc. No. 34). Hammler has not filed an amended complaint as 8 of the date of these Findings and Recommendations. (See docket). 10 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 11 when a litigant fails to prosecute an action or fails to comply with a court order. See Fed. R. Civ. 12 P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations 13 omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 14 (“[T]he consensus among our sister circuits, with which we agree, is that courts may dismiss 15 under Rule 41(b) sua sponte, at least under certain circumstances.”). Local Rule 110 similarly 16 permits the court to impose sanctions on a party who fails to comply with any order of the court. 17 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 18 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 19 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 20 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 21 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 22 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 23 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 24 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 25 five factors and independently reviewing the record because district court did not make finding as 26 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 27 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 28 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 2 reiterating that an explicit finding of each factor is not required by the district court). 4 The undersigned considers each of the above-stated factors and concludes dismissing this 5 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 6 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 7 Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 8 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 9 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 10 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 11 Emergency in the Eastern District of California. The Court’s time is better spent on its other 12 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 13 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 14 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of 15 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 16 timely respond to court order and noting “the weight of the docket-managing factor depends upon 17 the size and load of the docket, and those in the best position to know what that is are our 18 beleaguered trial judges.”). Delays have the inevitable and inherent risk that evidence will 19 become stale or witnesses' memories will fade or be unavailable and can prejudice a defendant, 20 thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Attempting a 21 less drastic action, such as allowing Hammler a third extension to file an amended complaint, 22 would be futile because Hammler has been provided multiple extensions and has failed to do so. 23 Granting an additional extension would inevitably end in the same result. Finally, the instant 24 dismissal is a dismissal without prejudice, which is a lesser sanction than a dismissal with 25 prejudice, thereby addressing the fifth factor. 26 Over seven months ago, the Court granted Hammler reconsideration and directed him to 27 file an amended complaint to address the factual circumstances to support his claim of imminent 28 danger. (Doc. No. 20). The Court granted Hammler two extensions of time totaling six-months 1 | of time to file his amended complaint. (Doc. Nos. 27, 30). The Court provided Hammler with 2 || courtesy copies of his previous filings to assist him in filing his amended complaint. (Doc. 27). 3 | And the Court repeatedly warned Hammler that his failure to file a timely amended complaint 4 | would be cause for dismissal. (Doc. No. 20 at 2, §] 3; Doc. No. 27 at 3; Doc. No. 30 at 2). As 5 | noted by his three-strike status, Hammler is no novice to filing federal lawsuits. But instead of 6 | filing an amended complaint to set forth facts to support his contention that he was in imminent 7 | danger in 2019 when he first commenced this action, Hammler instead filed other pleadings 8 | concerning unrelated events. (See Doc. Nos 31, 32, 34). Considering these factors and those set 9 | forth supra, as well as binding case law, the undersigned recommends dismissal, without 10 || prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 11 Accordingly, it is RECOMMENDED: 12 This case be dismissed without prejudice. 14 These findings and recommendations will be submitted to the United States district judge 15 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 16 || (21) days after being served with these findings and recommendations, a party may file written 17 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 | Findings and Recommendations.” Parties are advised that failure to file objections within the 19 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 20 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 23 Dated: _ June 28, 2021 Mihaw. □□ fares Back 24 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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