(PC) Rodriguez v. Fisher

Opinion

1 2 3 4 5 6 7 10 11 PEDRO RODRIGUEZ, Case No. 1:21-cv-00043-DAD-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO: (1) DISMISS CASE FOR FAILURE TO 13 v. PROSECUTE AND FAILURE TO COMPLY WITH A COURT ORDER; OR, IN THE 14 R. FISHER, JR., C. ADAMS, R. DIAZ, C. ALTERNATIVE (2) DISMISS COMPLAINT GREER, L. RODRIGUEZ, FOR FAILURE TO STATE A CLAIM AND 15 FOR IMPERMISSIBLE JOINDER OF Defendant. CLAIMS AND DEFENDANTS1 16 FOURTEEN-DAY OBJECTION PERIOD 17 (Doc. No. 1) 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 failure to comply with the Court’s order. In the alternative, the 22 undersigned recommends the complaint be dismissed for failure to state a claim and for 23 impermissible joinder of unrelated claims and Defendants. 25 Plaintiff, proceeding pro se, initiated this action by filing a civil complaint in the 26

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2019). 28 1 California Superior Court of Madera County on September 18, 2020. (Doc. No. 1 at 5). On 2 January 12, 2021, Defendants removed the case to this Court in accordance with 28 U.S.C. §§ 3 1441(a) and 1446 and paid the filing fee. (Doc. No. 1). On June 2, 2021, the undersigned 4 screened the complaint and found that it failed to state a claim. (Doc. No. 8). In the screening 5 order, Plaintiff was directed to file a first amended complaint within thirty days to cure any 6 deficiencies. (Id. at 12, ¶ 2). Plaintiff was duly warned that, absent any enlargements of time, his 7 failure to comply with the order would result in the undersigned recommending a dismissal of this 8 case. (Id. at 13, ¶ 3). Plaintiff has neither filed a first amended complaint nor moved for an 9 enlargement of time to file his amended complaint and the time in which to do has passed. 11 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 12 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 13 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 14 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 15 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 16 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 17 Rule 110 similarly permits the court to impose sanctions on a party who fails to comply with the 18 court’s Rules or any order of the court. Further, the procedural rules that govern the court are to 19 be “construed, administered and employed by the court . . . to secure the just, speedy, and 20 inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. 21 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 22 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 23 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 24 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 25 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 26 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 27 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntarily 28 dismissal) (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 1 (reviewing five factors and independently reviewing the record because district court did not 2 make finding as to each); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 3 2000) (listing the same, but noting the court need not make explicit findings as to each) (emphasis 4 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 5 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 6 reiterating that an explicit finding of each factor is not required by the district court). 8 A. Failure to Prosecute and Failure to Comply with a Court Order 9 The undersigned considers the above-stated factors and concludes the majority of the 10 above factors favor dismissal in this case. The expeditious resolution of litigation is deemed to be 11 in the public interest. Yourish v. California Amplifier, 191 F.2d 983, 990-91 (9th Cir. 1999). 12 Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 13 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 14 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 15 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 16 Emergency in the Eastern District of California. The Court’s time is better spent on its other 17 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 18 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 19 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of 20 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 21 timely respond to court order and noting “the weight of the docket-managing factor depends upon 22 the size and load of the docket, and those in the best position to know what that is are our 23 beleaguered trial judges.”). Delays have the inevitable and inherent risk that evidence will 24 become stale or witnesses' memories will fade or be unavailable and can prejudice a defendant, 25 thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Finally, the 26 recommended dismissal is a dismissal without prejudice, which is a lesser sanction than a 27 dismissal with prejudice, thereby addressing the fifth factor. 28 Here, Plaintiff was warned that he must file an amended complaint within thirty days from 1 receipt of the order, and absent any enlargements of time, the Court will recommend dismissal of 2 this action to the District Court without further notice. More than thirty days have passed, and 3 Plaintiff has neither filed a first amended complaint nor has he requested an enlargement of time. 4 Plaintiff has abandoned this action. Accordingly, the Court recommends that this action be 5 dismissed without prejudice. 6 B. Failure to State a Claim 7 In the alternative, the undersigned recommends that the complaint be dismissed for failure 8 to state a claim. The undersigned incorporates herein by reference as though set out at length 9 herein its previous screening order. (See Doc. No. 8). The screening order sets forth the 10 applicable law and standards for this action and details the deficiencies in the complaint. (Id.). 11 C. Impermissible Joinder of Unrelated Claims and Defendants 12 Further, the undersigned recommends the complaint be dismissed for Plaintiff’s 13 impermissible joinder of unrelated claims and Defendants. A plaintiff may properly assert 14 multiple claims against a single defendant in a civil action. Fed. Rule Civ. P. 18. In addition, a 15 plaintiff may join multiple defendants in one action where “any right to relief is asserted against 16 them jointly, severally, or in the alternative with respect to or arising out of the same transaction, 17 occurrence, or series of transactions and occurrences” and “any question of law or fact common 18 to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). However, unrelated claims 19 against different defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 20 605, 607 (7th Cir. 2007). This rule is intended “to prevent the sort of morass [a multiple claim, 21 multiple defendant] suit produce[s] . . ..” Id. A plaintiff may bring claims against more than one 22 defendant only if (1) the claims arise out of the same transaction, occurrence, or series of 23 transactions or occurrences, and (2) there is a question of law or fact common to all defendants. 24 Fed. R. Civ. P. 20(a)(2); see Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). 25 In his complaint, Petitioner makes various state law tort claims, American with 26 Disabilities Act (ADA) and Rehabilitation Act (RA) claims related to a typewriter 27 accommodation, an Eighth Amendment conditions of confinement claim related to his bunk bed 28 assignment, an Eighth Amendment failure to protect claim related to an incident with an inmate, 1 | anda Fourteenth Amendment equal protection claim related to disability discrimination. (See 2 | generally Doc. No. 1). The claims name different Defendants and occurred at different points of 3 | time. Liberally construed, some of Plaintiffs claims relate to each other—such as his state law 4 | claims related to his request for typewriter accommodations and his ADA and RA claims related 5 | to typewriter accommodations. However, his conditions of confinement claim and failure to 6 || protect claims do not relate to his other ADA and RA claim. Plaintiffs failure to protect claim 7 | centers on the alleged actions of Defendant Greer, while his typewriter accommodation claim 8 | centers on the actions of Defendants Rodriguez, Diaz, Fisher, and Adams. (/d. at 10). Moreover, 9 | Plaintiff's conditions of confinement claim does not identify a defendant liable for the alleged 10 | harm. (d. at 12). Accordingly, the undersigned recommends the complaint be dismissed as 11 | deficient for including impermissible claims and defendants. 12 Accordingly, it is RECOMMENDED: 13 This action be dismissed without prejudice for failure to prosecute and failure to comply 14 | with a Court order. In the alternative, the undersigned recommends that the complaint be 15 || dismissed without prejudice for complaint’s failure to state a claim and/or impermissible joinder 16 | of claims and Defendants. 18 These findings and recommendations will be submitted to the United States district judge 19 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 20 | (14) days after being served with these findings and recommendations, a party may file written 21 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 22 | Findings and Recommendations.” Parties are advised that failure to file objections within the 23 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 24 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). °° | Dated: _ August 17,2021 Mile. Wh. foareh fackte 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE