1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH ALAN SIERRA, No. 2:17-cv-2611 KJM AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CDCR DIRECTOR, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently pending before the undersigned is plaintiff’s motion for a 10-day 19 extension of time to file an amended complaint. ECF No. 94. 20 I. Procedural History 21 On July 31, 2019, the undersigned screened plaintiff’s first amended complaint, and 22 dismissed it with leave to file a second amended complaint within thirty days. ECF No. 41. 23 Plaintiff filed a motion for a 30-day extension of time (ECF No. 51) which was subsequently 24 granted (ECF No. 52). He then filed objections to the screening order (ECF No. 56) and another 25 motion for an extension of time to file an amended complaint (ECF No. 59). On December 12, 26 2019, due to the pending objections to the screening order, the deadline to amend the complaint 27 was vacated, to be re-set once the District Judge ruled on the objections. ECF No. 65. The 28 objections were overruled on January 15, 2020 (ECF No. 68), and the following day plaintiff was 1 ordered to file an amended complaint within thirty days and warned that failure to do so would 2 result in a recommendation that this action be dismissed (ECF No. 69). Plaintiff then filed two 3 motions for an extension of time to file a second amended complaint (ECF Nos. 73, 80) which 4 were granted on February 27, 2020 (ECF No. 82). On April 9, 2020, plaintiff asked for another 5 30-day extension of time (ECF No. 89), which was granted on May 18, 2020. ECF No. 91. In 6 that order, the undersigned explained that no further extensions of time would be granted. Id. at 7 3. 8 It has been nearly one year since the court originally ordered plaintiff to file a second 9 amended complaint or risk dismissal. During that time, plaintiff has filed numerous objections 10 and motions for reconsideration of various orders (ECF Nos. 56, 60-61, 74-75, 86-87, 90); 11 motions for extension of time to file such objections and motions (ECF Nos. 46, 53, 55, 66, 70, 12 72); and various other motions for relief (ECF Nos. 44-45, 48, 50, 57-58, 62- 63, 71, 81, 84-85, 13 88). Plaintiff has already been given nearly eleven months of extended time to file his amended 14 complaint, and yet he has failed to do so. 15 On May 18, 2020, the undersigned provided plaintiff with a thirty-day extension to file 16 his second amended complaint and stated that no further extensions would be granted. ECF No. 17 91. On June 29, 2020, after the deadline had passed, plaintiff requested an additional ten-day 18 extension. He appeared to represent that his second amended complaint was complete, and that 19 he was merely waiting for copies of exhibits he wished to attach. ECF No. 92 at 2. On July 2, 20 2020, the undersigned granted the requested ten days to obtain exhibits, and warned that no 21 further extensions would be granted. The court specifically stated that his amended complaint 22 must be filed by this final deadline with or without the exhibits. ECF No. 93 at 1-2. 23 Now plaintiff states, without explanation, that he would like an additional 10-day 24 extension of time. ECF No. 94. Separately, he filed a notice explaining that he was in a 25 quarantine due to COVID-19. ECF No. 95. However, in his last motion plaintiff represented that 26 his amended complaint was already complete, and the undersigned clearly explained that he 27 would not be given an additional extension. 28 //// 1 II. Terminating Sanctions Are Appropriate 2 The Local Rules of the Eastern District recognize the court’s wide latitude with regard to 3 sanctions—under Local Rule 110, the failure of a party to comply with any local rule or order of 4 the court may result in the imposition of “any and all sanctions authorized by statute or Rule or 5 within the inherent power of the Court.” 6 It is within the discretion of a district court to order dismissal as a sanction. Olivia v. 7 Sullivan, 958 F.2d 272, 273 (9th Cir. 1992) (citing Hamilton Copper & Steel Corp. v. Primary 8 Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990)). However, because “‘dismissal is a harsh 9 penalty . . . it should only be imposed in extreme circumstances.’” Hernandez v. City of El 10 Monte, 138 F.3d 393, 399 (9th Cir. 1998) (emphasis in the original) (quoting Ferdik v. Bonzelet, 11 963 F.2d 1258, 1260 (9th Cir. 1992)); Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 12 482 F.3d 1091, 1096 (9th Cir. 2007) (“Only ‘willfulness, bad faith, and fault’ justify terminating 13 sanctions” (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003))). The court must 14 consider five factors “before resorting to the penalty of dismissal: ‘(1) the public’s interest in 15 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 16 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 17 (5) the availability of less drastic sanctions.’” Id. (quoting Henderson v. Duncan, 779 F.2d 1421, 18 1423 (9th Cir. 1986)). The fifth factor is comprised of three subparts, which include “whether the 19 court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant 20 party about the possibility of case-dispositive sanctions.” Conn. Gen. Life Ins., 482 F.3d at 1096 21 (citation omitted). 22 Not all factors must cut in favor of dismissal for the sanction to be imposed. Malone v. 23 U.S. Postal Serv., 833 F.2d 128, 133 n.2 (9th Cir. 1987); see also Ferdik, 963 F.2d at 1263 (“Even 24 if the prejudice factor as well as the fifth factor regarding the public policy favoring disposition 25 on the merits both weighed against dismissal, they would not outweigh the other three factors that 26 strongly support dismissal here.” (citation omitted)). 27 A. Public Interest in the Expeditious Resolution of Cases 28 “[T]he public’s interest in expeditious resolution of litigation always favors dismissal.” 1 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, plaintiff has repeatedly 2 failed to file an amended complaint despite being given multiple extensions and being warned 3 that failure to comply would result in dismissal. His refusal to follow deadlines, despite a court 4 order warning that failure to do so would result in dismissal, has delayed the expeditious 5 resolution of this case. 6 B. The Court’s Need to Manage Its Docket 7 Plaintiff’s failure to timely file a second amended complaint has already consumed a 8 considerable amount of limited judicial time and resources.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH ALAN SIERRA, No. 2:17-cv-2611 KJM AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CDCR DIRECTOR, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently pending before the undersigned is plaintiff’s motion for a 10-day 19 extension of time to file an amended complaint. ECF No. 94. 20 I. Procedural History 21 On July 31, 2019, the undersigned screened plaintiff’s first amended complaint, and 22 dismissed it with leave to file a second amended complaint within thirty days. ECF No. 41. 23 Plaintiff filed a motion for a 30-day extension of time (ECF No. 51) which was subsequently 24 granted (ECF No. 52). He then filed objections to the screening order (ECF No. 56) and another 25 motion for an extension of time to file an amended complaint (ECF No. 59). On December 12, 26 2019, due to the pending objections to the screening order, the deadline to amend the complaint 27 was vacated, to be re-set once the District Judge ruled on the objections. ECF No. 65. The 28 objections were overruled on January 15, 2020 (ECF No. 68), and the following day plaintiff was 1 ordered to file an amended complaint within thirty days and warned that failure to do so would 2 result in a recommendation that this action be dismissed (ECF No. 69). Plaintiff then filed two 3 motions for an extension of time to file a second amended complaint (ECF Nos. 73, 80) which 4 were granted on February 27, 2020 (ECF No. 82). On April 9, 2020, plaintiff asked for another 5 30-day extension of time (ECF No. 89), which was granted on May 18, 2020. ECF No. 91. In 6 that order, the undersigned explained that no further extensions of time would be granted. Id. at 7 3. 8 It has been nearly one year since the court originally ordered plaintiff to file a second 9 amended complaint or risk dismissal. During that time, plaintiff has filed numerous objections 10 and motions for reconsideration of various orders (ECF Nos. 56, 60-61, 74-75, 86-87, 90); 11 motions for extension of time to file such objections and motions (ECF Nos. 46, 53, 55, 66, 70, 12 72); and various other motions for relief (ECF Nos. 44-45, 48, 50, 57-58, 62- 63, 71, 81, 84-85, 13 88). Plaintiff has already been given nearly eleven months of extended time to file his amended 14 complaint, and yet he has failed to do so. 15 On May 18, 2020, the undersigned provided plaintiff with a thirty-day extension to file 16 his second amended complaint and stated that no further extensions would be granted. ECF No. 17 91. On June 29, 2020, after the deadline had passed, plaintiff requested an additional ten-day 18 extension. He appeared to represent that his second amended complaint was complete, and that 19 he was merely waiting for copies of exhibits he wished to attach. ECF No. 92 at 2. On July 2, 20 2020, the undersigned granted the requested ten days to obtain exhibits, and warned that no 21 further extensions would be granted. The court specifically stated that his amended complaint 22 must be filed by this final deadline with or without the exhibits. ECF No. 93 at 1-2. 23 Now plaintiff states, without explanation, that he would like an additional 10-day 24 extension of time. ECF No. 94. Separately, he filed a notice explaining that he was in a 25 quarantine due to COVID-19. ECF No. 95. However, in his last motion plaintiff represented that 26 his amended complaint was already complete, and the undersigned clearly explained that he 27 would not be given an additional extension. 28 //// 1 II. Terminating Sanctions Are Appropriate 2 The Local Rules of the Eastern District recognize the court’s wide latitude with regard to 3 sanctions—under Local Rule 110, the failure of a party to comply with any local rule or order of 4 the court may result in the imposition of “any and all sanctions authorized by statute or Rule or 5 within the inherent power of the Court.” 6 It is within the discretion of a district court to order dismissal as a sanction. Olivia v. 7 Sullivan, 958 F.2d 272, 273 (9th Cir. 1992) (citing Hamilton Copper & Steel Corp. v. Primary 8 Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990)). However, because “‘dismissal is a harsh 9 penalty . . . it should only be imposed in extreme circumstances.’” Hernandez v. City of El 10 Monte, 138 F.3d 393, 399 (9th Cir. 1998) (emphasis in the original) (quoting Ferdik v. Bonzelet, 11 963 F.2d 1258, 1260 (9th Cir. 1992)); Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 12 482 F.3d 1091, 1096 (9th Cir. 2007) (“Only ‘willfulness, bad faith, and fault’ justify terminating 13 sanctions” (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003))). The court must 14 consider five factors “before resorting to the penalty of dismissal: ‘(1) the public’s interest in 15 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 16 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 17 (5) the availability of less drastic sanctions.’” Id. (quoting Henderson v. Duncan, 779 F.2d 1421, 18 1423 (9th Cir. 1986)). The fifth factor is comprised of three subparts, which include “whether the 19 court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant 20 party about the possibility of case-dispositive sanctions.” Conn. Gen. Life Ins., 482 F.3d at 1096 21 (citation omitted). 22 Not all factors must cut in favor of dismissal for the sanction to be imposed. Malone v. 23 U.S. Postal Serv., 833 F.2d 128, 133 n.2 (9th Cir. 1987); see also Ferdik, 963 F.2d at 1263 (“Even 24 if the prejudice factor as well as the fifth factor regarding the public policy favoring disposition 25 on the merits both weighed against dismissal, they would not outweigh the other three factors that 26 strongly support dismissal here.” (citation omitted)). 27 A. Public Interest in the Expeditious Resolution of Cases 28 “[T]he public’s interest in expeditious resolution of litigation always favors dismissal.” 1 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, plaintiff has repeatedly 2 failed to file an amended complaint despite being given multiple extensions and being warned 3 that failure to comply would result in dismissal. His refusal to follow deadlines, despite a court 4 order warning that failure to do so would result in dismissal, has delayed the expeditious 5 resolution of this case. 6 B. The Court’s Need to Manage Its Docket 7 Plaintiff’s failure to timely file a second amended complaint has already consumed a 8 considerable amount of limited judicial time and resources. The Eastern District of California has 9 one of the heaviest caseloads in the country, and as noted above, plaintiff’s continued failure to 10 file an amended complaint while continuing to file alternate motions with the court has already 11 resulted in a considerable expenditure of court resources. Considerations of judicial economy 12 weigh in favor of terminating sanctions. Ferdik, 963 F.2d at 1261 (finding that it was necessary 13 “to preserve the district courts’ power to manage their dockets without being subject to the 14 endless vexatious noncompliance of litigants”). 15 C. Risk of Prejudice to the Defendant 16 “While [the mere pendency of a lawsuit] may be prejudicial, it cannot, by itself, be 17 considered prejudicial enough to warrant dismissal.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 18 1984)). Rather, “[i]n determining whether a defendant has been prejudiced, we examine whether 19 the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to interfere with the 20 rightful decision of the case.” Malone, 833 F.3d at 131 (citation omitted). The risk of prejudice 21 is considered in relation to plaintiff’s reason for defaulting. Pagtalunan v. Galaza, 291 F.3d 639, 22 642 (9th Cir. 2002) (citing Yourish, 191 F.3d at 991). In this instance, there is no operative 23 complaint that would prejudice defendants. Moreover, service on defendants has not been 24 initiated and accordingly, this factor weighs in favor of dismissal. 25 D. Publc Policy Favoring Merits Resolution 26 The general policy favoring disposition of cases on their merits always weighs against 27 terminating sanctions. Yourish, 191 F.3d at 992 (citation and internal quotation marks omitted). 28 However, this policy alone is not sufficient to outweigh the other factors discussed herein. Leon 1 v. IDX Sys. Corp., 464 F.3d 951, 960-61 (9th Cir. 2006) (citation omitted). 2 E. Availability and Effectiveness of Lesser Sanctions 3 The court finds no other, lesser sanctions that would be satisfactory or effective. Plaintiff 4 is proceeding in forma pauperis, making it unlikely that monetary sanctions will induce him to 5 cooperate or prosecute his case. Plaintiff was specifically warned that failure to comply with the 6 July 2, 2020 order could result in dismissal of this action, ECF No. 93, and the “court’s warning 7 to a party that his failure to obey the court’s order will result in dismissal can satisfy the 8 ‘consideration of alternatives’ requirement,” Ferdik, 963 F.2d at 1262 (citing Malone, 833 at 132- 9 33; Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)). 10 Despite being given the opportunity to file a second amended complaint, plaintiff has 11 failed to do so for almost a year. Plaintiff’s lack of compliance demonstrates a willful disregard 12 for this court’s order and the court finds that lesser sanctions would be ineffective and insufficient 13 to address this behavior. 14 For these reasons, the undersigned finds that terminating sanctions are justified and will 15 recommend dismissing this case with prejudice. 16 III. Conclusion 17 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for an extension of time, 18 ECF No. 94, is DENIED. 19 It is FURTHER RECOMMENDED that this action be dismissed, with prejudice, for 20 failure to comply with a court order. See L.R. 110. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 26 //// 27 //// 28 //// wOAOe Ct PUN VMEMELUINGINIT ENS RUC I ee Ye VI
1 | failure to file objections within the specified time may waive the right to appeal the District 2 || Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991), 3 | DATED: July 23, 2020 . ~ 4 Cthten— Lhar—e_ 5 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28