1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOHN PAUL FRANK Case No. 1:21-CV-01107-HBK (PC) SCHOWACHERT, 11 ORDER TO ASSIGN A DISTRICT JUDGE Plaintiff, 12 FINDINGS AND RECOMMENDATIONS TO v. DISMISS ACTION WITHOUT PREJUDICE 13 FOR PLAINTIFF’S FAILURE TO BILL POLLEY and ALL OFFICERS ON PROSECUTE1 14 DUTY ON JANUARY 13, 2017, FOURTEEN-DAY DEADLINE 15 Defendants. 16 17 Plaintiff John Paul Frank Schowachert, a prisoner, is proceeding pro se and in forma 18 pauperis in this civil rights action. For the reasons set forth below, the undersigned recommends 19 that the District Court dismiss this action for Plaintiff’s failure to comply with a court order and 20 prosecute this action. 21 BACKGROUND 22 Plaintiff John Paul Frank Schowachert, a prisoner, initiated this action on June 16, 2021, 23 by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1, “Complaint”). Plaintiff 24 initiated this action in the Sacramento Division of the Eastern District of California, and it was 25 transferred to this Court. (Doc. Nos. 1, 6). The Complaint identifies as Defendants: (1) Jail 26 Commander Bill Polley, and (2) “all officers on duty on 1-13-2017.” (Id. at 1-2). The Complaint 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. Ca. 28 2022). 1 is disjointed, difficult to discern, and contains rambling and unrelated sentences pertaining to 2 Plaintiff’s family. (Id. at 3). Plaintiff alleges on January 13, 2017, all corrections officers on duty 3 at the Tuolumne County Jail conspired to murder him. (Id. at 3). As a result, Plaintiff lost his 4 wife, his house, suffered a traumatic brain injury, and experiences seizures. (Id.). As relief 5 Plaintiff seeks $10,000,000.00 in damages. (Id. at 6). 6 On August 4, 2023, the undersigned issued an order to show cause directing Plaintiff to 7 show cause why this action should not be dismissed because his claim is barred by the statute of 8 limitations and because the Complaint is otherwise frivolous. (Doc. No. 10, “Order to Show 9 Cause”). Plaintiff was directed to deliver his response to the show cause order to correctional 10 officials for mailing no later than September 5, 2023. (Id. at 5 ¶ 1). The Court advised Plaintiff 11 that he could alternatively file a notice of voluntary dismissal under Rule 41 of the Federal Rules 12 of Civil Procedure to avoid a strike. (Id.). Finally, Plaintiff was advised that his failure to timely 13 respond to the Order to Show Cause would result in the undersigned recommending the district 14 court dismiss “this case as a sanction for Plaintiff’s failure to comply with a court order and for 15 failing to prosecute this action after its determination that the complaint is frivolous[.]” (Id. at 5). 16 As of the date of these Findings and Recommendations, Plaintiff has not filed a response to the 17 Order to Show Cause and the time to do so has lapsed.2 18 APPLICABLE LAW AND ANALSYIS 19 A. Legal Standard 20 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 21 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 22 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 23 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 24 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … 25 any order of the Court may be grounds for the imposition by the Court of any and all sanctions … 26 within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power 27 2 As of the date of these Findings and Recommendations, 13 days have lapsed since the September 5, 2023 28 deadline, providing sufficient time for mailing. 1 to control their dockets” and, in exercising that power, may impose sanctions, including dismissal 2 of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 3 A court may dismiss an action based on a party’s failure to prosecute an action, obey a court 4 order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 5 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. 6 Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court 7 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to 8 prosecute and to comply with local rules). In determining whether to dismiss an action, the Court 9 must consider the following factors: (1) the public’s interest in expeditious resolution of 10 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; 11 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 12 drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 13 1988). 14 B. Analysis 15 After considering each of the above-stated factors, the undersigned concludes dismissal 16 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 17 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 18 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 19 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 20 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 21 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates 22 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 23 Emergency in the Eastern District of California. This Court’s time is better spent on its other 24 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 25 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 26 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 27 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 28 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 1 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 2 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 3 unreasonable delay in prosecuting an action. Anderson v. Air W.,
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOHN PAUL FRANK Case No. 1:21-CV-01107-HBK (PC) SCHOWACHERT, 11 ORDER TO ASSIGN A DISTRICT JUDGE Plaintiff, 12 FINDINGS AND RECOMMENDATIONS TO v. DISMISS ACTION WITHOUT PREJUDICE 13 FOR PLAINTIFF’S FAILURE TO BILL POLLEY and ALL OFFICERS ON PROSECUTE1 14 DUTY ON JANUARY 13, 2017, FOURTEEN-DAY DEADLINE 15 Defendants. 16 17 Plaintiff John Paul Frank Schowachert, a prisoner, is proceeding pro se and in forma 18 pauperis in this civil rights action. For the reasons set forth below, the undersigned recommends 19 that the District Court dismiss this action for Plaintiff’s failure to comply with a court order and 20 prosecute this action. 21 BACKGROUND 22 Plaintiff John Paul Frank Schowachert, a prisoner, initiated this action on June 16, 2021, 23 by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1, “Complaint”). Plaintiff 24 initiated this action in the Sacramento Division of the Eastern District of California, and it was 25 transferred to this Court. (Doc. Nos. 1, 6). The Complaint identifies as Defendants: (1) Jail 26 Commander Bill Polley, and (2) “all officers on duty on 1-13-2017.” (Id. at 1-2). The Complaint 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. Ca. 28 2022). 1 is disjointed, difficult to discern, and contains rambling and unrelated sentences pertaining to 2 Plaintiff’s family. (Id. at 3). Plaintiff alleges on January 13, 2017, all corrections officers on duty 3 at the Tuolumne County Jail conspired to murder him. (Id. at 3). As a result, Plaintiff lost his 4 wife, his house, suffered a traumatic brain injury, and experiences seizures. (Id.). As relief 5 Plaintiff seeks $10,000,000.00 in damages. (Id. at 6). 6 On August 4, 2023, the undersigned issued an order to show cause directing Plaintiff to 7 show cause why this action should not be dismissed because his claim is barred by the statute of 8 limitations and because the Complaint is otherwise frivolous. (Doc. No. 10, “Order to Show 9 Cause”). Plaintiff was directed to deliver his response to the show cause order to correctional 10 officials for mailing no later than September 5, 2023. (Id. at 5 ¶ 1). The Court advised Plaintiff 11 that he could alternatively file a notice of voluntary dismissal under Rule 41 of the Federal Rules 12 of Civil Procedure to avoid a strike. (Id.). Finally, Plaintiff was advised that his failure to timely 13 respond to the Order to Show Cause would result in the undersigned recommending the district 14 court dismiss “this case as a sanction for Plaintiff’s failure to comply with a court order and for 15 failing to prosecute this action after its determination that the complaint is frivolous[.]” (Id. at 5). 16 As of the date of these Findings and Recommendations, Plaintiff has not filed a response to the 17 Order to Show Cause and the time to do so has lapsed.2 18 APPLICABLE LAW AND ANALSYIS 19 A. Legal Standard 20 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 21 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 22 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 23 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 24 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … 25 any order of the Court may be grounds for the imposition by the Court of any and all sanctions … 26 within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power 27 2 As of the date of these Findings and Recommendations, 13 days have lapsed since the September 5, 2023 28 deadline, providing sufficient time for mailing. 1 to control their dockets” and, in exercising that power, may impose sanctions, including dismissal 2 of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 3 A court may dismiss an action based on a party’s failure to prosecute an action, obey a court 4 order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 5 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. 6 Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court 7 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to 8 prosecute and to comply with local rules). In determining whether to dismiss an action, the Court 9 must consider the following factors: (1) the public’s interest in expeditious resolution of 10 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; 11 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 12 drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 13 1988). 14 B. Analysis 15 After considering each of the above-stated factors, the undersigned concludes dismissal 16 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 17 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 18 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 19 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 20 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 21 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates 22 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 23 Emergency in the Eastern District of California. This Court’s time is better spent on its other 24 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 25 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 26 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 27 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 28 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 1 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 2 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 3 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 4 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 5 the third factor weighs in favor of dismissal. 6 The fourth factor usually weighs against dismissal because public policy favors the 7 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 8 However, “this factor lends little support to a party whose responsibility it is to move a case 9 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 10 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 11 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 12 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 13 Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of 14 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 15 timely respond to court order and noting “the weight of the docket-managing factor depends upon 16 the size and load of the docket, and those in the best position to know what that is are our 17 beleaguered trial judges.”). Further, the Court’s August 4, 2023 Order to Show Cause found the 18 Complaint failed to state any cognizable claim because it was factually and legally frivolous. 19 (See Doc. No. 10). 20 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 21 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 22 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s August 4, 2023 Order to 23 Show Cause expressly warned Plaintiff that his failure to comply with the Court’s order would 24 result in the undersigned recommending the district court to dismiss this action for Plaintiff’s 25 failure to comply with a court order and prosecute this case. (See Doc. No. 10 at 5, 26 6 ¶ 2). Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance. 27 And the instant dismissal is a dismissal without prejudice, which is a lesser sanction than a 28 dismissal with prejudice, thereby addressing the fifth factor. 1 After considering the factors set forth supra and binding case law, the undersigned 2 | recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 3 Accordingly, it is ORDERED: 4 The Clerk of the Court randomly assign this case to a District Judge. 5 It is further RECOMMENDED: 6 This action be DISMISSED without prejudice for Plaintiff's failure to obey court orders 7 | and failure to prosecute. Because the dismissal for failure to prosecute and obey a court order is 8 || after the Court screened the complaint and directed Plaintiff to file an amended complaint, this 9 | dismissal shall qualify as a strike for purposes of 28 U.S.C. § 1915. Harris v. Mangum, 863 F.3d 10 1133, 1143 (9th Cir. 2017). 11 NOTICE 12 These Findings and Recommendations will be submitted to the United States District 13 || Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 14 | of the date of service of these Findings and Recommendations, a party may file written 15 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 16 | Findings and Recommendations.” A party’s failure to file objections within the specified time 17 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 18 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 | Dated: _ September 18, 2023 Wiha. □□ fares Zackte 71 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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