1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARMAAL SMITH, No. 1:19-cv-00437-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE1 13 v. OBJECTIONS DUE WITHIN THIRTY DAYS 14 CHRISTIAN PFEIFFER, et al.,
15 Defendants.
16 17 This matter comes before the court upon initial review of the file, which was reassigned to 18 the undersigned on November 17, 2020. (Doc. No. 17). As more fully set forth below, the 19 undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to 20 prosecute this action and his refusal to accept the court’s order to show cause or update his 21 address of record. 22 I. FACTS AND BACKGROUND 23 Plaintiff Jarmaal Smith is state prisoner proceeding pro se and in forma pauperis on his 24 civil rights complaint filed under 42 U.S.C. § 1983. (Doc. Nos. 1, 7). On December 10, 2019, the 25 court granted plaintiff’s motion to amend his complaint and ordered the amended complaint to be 26 file within thirty (30) days. (Doc. No. 11). Well after the thirty (30) day period expired, the court 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. Ca. 2019). 1 issued an order to show cause why the court should not dismiss the case for plaintiff’s failure to 2 prosecute and to comply with the court’s December 10, 2019 Order. (See May 11, 2020 Order, 3 Doc. No. 16 at 1-2). On May 28, 2020, the court’s show cause order was returned to the court as 4 “Undeliverable. Return to Sender. Inmate Refused.” As of the date of this report and 5 recommendations, Plaintiff has not filed an amended complaint nor has he filed an updated address, 6 to the extent he has been transferred or released as required by Local Rules 182(f) and 183(b). (See 7 docket). 8 II. APPLICABLE LAW 9 This court’s Local Rules require litigants to keep the court apprised of their current 10 address, specifically providing: 11 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 12 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court 13 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 14 for failure to prosecute.” 15 E.D. Cal. Loc. R. 183(b) (2019). Federal Rule of Civil Procedure 41(b) permits the court to 16 involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with 17 other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. 18 Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted) Hells Canyon Pres. Council 19 v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister 20 circuits, with which we agree, is that courts may dismiss under Rule 41(b) sua sponte, at least 21 under certain circumstances.”). Local Rule 110 similarly permits the court to impose sanctions 22 on a party who fails to comply with the court’s Rules or any order of court. 23 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 24 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 25 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; (5) the 26 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting court 27 that these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis 28 added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors 1 and independently reviewing the record because district court did not make finding as to each); 2 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 3 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 4 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se 1983 action when plaintiff did 5 not amend caption to remove “et al” as the court directed and reiterating that an explicit finding of 6 each factor is not required by the district court). 7 III. >ANALYSIS 8 While not entirely clear whether plaintiff refused the court’s order to show cause or was 9 not at the institution when it was delivered,2 plaintiff failed to timely comply with the court’s 10 December 10, 2019 order and file an amended complaint and to date has done nothing to 11 prosecute this action. Thus, the undersigned considers each of the above-stated factors and 12 concludes dismissal is warranted in this case. The expeditious resolution of litigation is deemed 13 to be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 14 983, 990-91 (9th Cir. 1999). Turning to the second factor, the court’s need to efficiently manage 15 its docket cannot be overstated. This court has “one of the heaviest caseloads in the nation,” and 16 due to unfilled judicial vacancies, which is further exacerbated by the Covid-19 pandemic, 17 operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing 18 Judicial Emergency in the Eastern District of California. The court’s time is better spent on its 19 other matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, 20 “trial courts do not have time to waste on multiple failures by aspiring litigants to follow the rules 21 and requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, 22 J., concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas 23 petition where petitioner failed to timely respond to court order and noting “the weight of the 24 docket-managing factor depends upon the size and load of the docket, and those in the best 25 position to know what that is are our beleaguered trial judges.”). Delays inevitably have the 26 inherent risk that evidence will become stale or witnesses' memories will fade or be unavailable 27 2 The court notes the November 17, 2020 order reassigning this case to the undersigned was not returned 28 as undeliverable or refused. 1 | and can prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 2 | U.S. 40, 57 (1968). The absence of an amended complaint prevents the court from performing a 3 | screening under 28 U.S.C. § 1915A to determine whether plaintiff’s claims have any merit.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARMAAL SMITH, No. 1:19-cv-00437-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE1 13 v. OBJECTIONS DUE WITHIN THIRTY DAYS 14 CHRISTIAN PFEIFFER, et al.,
15 Defendants.
16 17 This matter comes before the court upon initial review of the file, which was reassigned to 18 the undersigned on November 17, 2020. (Doc. No. 17). As more fully set forth below, the 19 undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to 20 prosecute this action and his refusal to accept the court’s order to show cause or update his 21 address of record. 22 I. FACTS AND BACKGROUND 23 Plaintiff Jarmaal Smith is state prisoner proceeding pro se and in forma pauperis on his 24 civil rights complaint filed under 42 U.S.C. § 1983. (Doc. Nos. 1, 7). On December 10, 2019, the 25 court granted plaintiff’s motion to amend his complaint and ordered the amended complaint to be 26 file within thirty (30) days. (Doc. No. 11). Well after the thirty (30) day period expired, the court 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. Ca. 2019). 1 issued an order to show cause why the court should not dismiss the case for plaintiff’s failure to 2 prosecute and to comply with the court’s December 10, 2019 Order. (See May 11, 2020 Order, 3 Doc. No. 16 at 1-2). On May 28, 2020, the court’s show cause order was returned to the court as 4 “Undeliverable. Return to Sender. Inmate Refused.” As of the date of this report and 5 recommendations, Plaintiff has not filed an amended complaint nor has he filed an updated address, 6 to the extent he has been transferred or released as required by Local Rules 182(f) and 183(b). (See 7 docket). 8 II. APPLICABLE LAW 9 This court’s Local Rules require litigants to keep the court apprised of their current 10 address, specifically providing: 11 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 12 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court 13 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 14 for failure to prosecute.” 15 E.D. Cal. Loc. R. 183(b) (2019). Federal Rule of Civil Procedure 41(b) permits the court to 16 involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with 17 other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. 18 Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted) Hells Canyon Pres. Council 19 v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister 20 circuits, with which we agree, is that courts may dismiss under Rule 41(b) sua sponte, at least 21 under certain circumstances.”). Local Rule 110 similarly permits the court to impose sanctions 22 on a party who fails to comply with the court’s Rules or any order of court. 23 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 24 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 25 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; (5) the 26 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting court 27 that these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis 28 added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors 1 and independently reviewing the record because district court did not make finding as to each); 2 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 3 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 4 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se 1983 action when plaintiff did 5 not amend caption to remove “et al” as the court directed and reiterating that an explicit finding of 6 each factor is not required by the district court). 7 III. >ANALYSIS 8 While not entirely clear whether plaintiff refused the court’s order to show cause or was 9 not at the institution when it was delivered,2 plaintiff failed to timely comply with the court’s 10 December 10, 2019 order and file an amended complaint and to date has done nothing to 11 prosecute this action. Thus, the undersigned considers each of the above-stated factors and 12 concludes dismissal is warranted in this case. The expeditious resolution of litigation is deemed 13 to be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 14 983, 990-91 (9th Cir. 1999). Turning to the second factor, the court’s need to efficiently manage 15 its docket cannot be overstated. This court has “one of the heaviest caseloads in the nation,” and 16 due to unfilled judicial vacancies, which is further exacerbated by the Covid-19 pandemic, 17 operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing 18 Judicial Emergency in the Eastern District of California. The court’s time is better spent on its 19 other matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, 20 “trial courts do not have time to waste on multiple failures by aspiring litigants to follow the rules 21 and requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, 22 J., concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas 23 petition where petitioner failed to timely respond to court order and noting “the weight of the 24 docket-managing factor depends upon the size and load of the docket, and those in the best 25 position to know what that is are our beleaguered trial judges.”). Delays inevitably have the 26 inherent risk that evidence will become stale or witnesses' memories will fade or be unavailable 27 2 The court notes the November 17, 2020 order reassigning this case to the undersigned was not returned 28 as undeliverable or refused. 1 | and can prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 2 | U.S. 40, 57 (1968). The absence of an amended complaint prevents the court from performing a 3 | screening under 28 U.S.C. § 1915A to determine whether plaintiff’s claims have any merit. 4 | Additionally, the instant dismissal is a dismissal without prejudice, which is a lesser sanction than 5 || adismissal with prejudice, thereby addressing the fifth factor. 6 Plaintiff has not filed an amended complaint despite having 16 months to do so. The 7 | show cause order was undeliverable, either because plaintiff was transferred or refused the order. 8 | To the extent plaintiff was transferred, well more than 63 days have passed contrary to Local Rule 9 | 183(b). This case has laid dormant for an unwarranted period. After considering the factors set 10 | forth supra and binding case law, the undersigned recommends dismissal, without prejudice, 11 under Fed. R. Civ. P. 41(b) and Local Rules 110 and, if applicable, 183(b). 12 Accordingly, it is RECOMMENDED: 13 This case be dismissed without prejudice. 14 NOTICE TO PARTIES 15 These findings and recommendations will be submitted to the United States district judge 16 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 17 | days after being served with these findings and recommendations, a party may file written 18 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 19 | Findings and Recommendations.” Parties are advised that failure to file objections within the 20 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 21 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 73 IT IS SO ORDERED. 24 Dated: __April 30, 2021 Mile. Wh fareh fackte 25 HELENA M. BARCH-KUCHTA 26 UNITED STATES MAGISTRATE JUDGE
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