1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIMITRI Z. STORM, No. 1:24-cv-00830 GSA (PC) 12 Plaintiff, ORDER AND FINDINGS AND RECOMMENDATIONS 13 v. ORDER RECOMMENDING DISMISSAL OF 14 GAVIN NEWSOM, et al., THIS ACTION FOR FAILURE TO PROSECUTE AND FOR FAILURE TO OBEY 15 Defendants. COURT ORDERS 16 PLAINTIFF’S OBJECTIONS DUE IN FOURTEEN DAYS 17
18 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 19 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 For the reasons stated below, the undersigned will recommend that this matter be 22 dismissed for failure to prosecute and for failure to obey court orders. Plaintiff will be given 23 fourteen days to file objections to this order. 24 I. RELEVANT PROCEDURAL HISTORY 25 On July 18, 2024, Plaintiff’s complaint and his application to proceed in forma pauperis 26 were docketed. ECF Nos. 1, 2, 6. The next day, Plaintiff’s application to proceed in forma 27 pauperis was granted. 28 1 On July 30, 2024, the complaint was screened. ECF No. 8. Ultimately, the undersigned 2 found that the pleading failed to state a claim upon which relief could be granted. Id. at 4-10. As 3 a result, Plaintiff was directed to file an amended complaint. Id. at 12-13. He was given thirty 4 days to do so. Id. at 12. 5 Plaintiff failed to file an amended complaint within the time allotted. As a result, on 6 September 30, 2024, the undersigned ordered Plaintiff to show cause why this matter should not 7 be dismissed for failure to prosecute. ECF No. 9. As an alternative to filing the showing of 8 cause, Plaintiff was also given another opportunity to file an amended complaint. Id. at 2. 9 Plaintiff was given thirty days to take either course of action. Id. 10 More than thirty days have passed and Plaintiff has neither responded to the Court’s order 11 to show cause, nor has he filed an amended complaint. Nor has he filed a request for an extension 12 of time to take either course of action. Plaintiff has not responded to the Court’s orders in any 13 way. 14 II. APPLICABLE LAW 15 A. Federal Rule of Civil Procedure 41(b) and Local Rule 110 16 Federal Rule of Civil Procedure 41 permits this Court to dismiss a matter if a plaintiff fails 17 to prosecute or he fails to comply with a court order. See Fed. R. Civ. P. 41(b). Local Rule 110 18 also permits the imposition of sanctions when a party fails to comply with a court order. L.R. 19 110. 20 B. Malone Factors 21 The Ninth Circuit has clearly identified the factors to consider when dismissing a case for 22 failure to comply with a court order. It writes: 23 A district court must weigh five factors in determining whether to dismiss a case 24 for failure to comply with a court order: “(1) the public’s interest in expeditious 25 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 26 their merits; and (5) the availability of less drastic sanctions.” 27 28 Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (quoting Thompson v. 1 Hous. Auth. of City of Los Angeles, 782 F.2d 829 (9th Cir. 1986) (per curiam)).1 2 III. DISCUSSION 3 A. Rule 41(b) and Local Rule 110 Support Dismissal of This Case 4 The fact that Plaintiff has failed to amend the complaint and that he has also failed to 5 respond to the Court’s order to show cause warrants dismissal of this matter, in accord with Rule 6 41(b). This inaction on Plaintiff’s part also warrants the imposition of sanctions in the form of 7 dismissal of this case, consistent with Local Rule 110. 8 B. Application of Malone Factors Supports the Dismissal of This Case 9 1. Expeditious Resolution of Litigation; Court’s Need to Manage Its Docket 10 Plaintiff has been given more than ample time to file an amended complaint and to 11 respond to the Court’s order to show cause. Yet, he has failed to do either, nor has he contacted 12 the Court to provide an exceptional reason for not having done so. 13 The Eastern District Court has an unusually large caseload.2 “[T]he goal of fairly 14 dispensing justice . . . is compromised when the Court is forced to devote its limited resources to 15 1 These factors are “not a series of conditions precedent before the judge can do anything,” but a 16 “way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006), (quoting Valley Engineers, Inc. v. Elec. Eng’g 17 Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). They are not a script for making what the district judge does appeal-proof, either. Valley Engineers, Inc., 158 F.3d at 1057; In re 18 Phenylpropanolamine, 460 F.3d at 1226 (quoting Valley Engineers, Inc.). 19 It is not required that a district court make explicit findings in order to show that it has considered these factors. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). The 20 Ninth Circuit will review the record to independently determine if the district court has abused its discretion by dismissing a case. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) 21 (citations omitted); Malone, 833 F.2d at 130 (stating not necessary for court to make explicit findings that it has considered five factors; appellate court may review record independently). All 22 the same, because this division of the Eastern District prefers that this analysis be done in every 23 matter that is dismissed for failure to prosecute and/or for failure to obey a court order, the Malone analysis is done herein. 24 2 The Eastern District of California carries one of the largest and most heavily weighted caseloads in the nation. See Office of the Clerk, United States District Court, Eastern District of 25 California, 2024 Annual Report, “Weighted Filings,” p. 35 (2024) (“[O]ur weighted caseload far exceeds the national average . . . ranking us fourth in the nation and first in the Ninth Circuit.”). 26 This problem is compounded by a shortage of jurists to review its pending matters. See generally 27 id. (stating 2024 Biennial Judgeship Survey recommended request for four additional permanent judgeships for Eastern District of California). 28 1 the processing of frivolous and repetitious requests.” Whitaker v. Superior Court of San 2 Francisco, 514 U.S. 208, 210 (1994) (brackets added) (citation omitted).
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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 DIMITRI Z. STORM, No. 1:24-cv-00830 GSA (PC) 12 Plaintiff, ORDER AND FINDINGS AND RECOMMENDATIONS 13 v. ORDER RECOMMENDING DISMISSAL OF 14 GAVIN NEWSOM, et al., THIS ACTION FOR FAILURE TO PROSECUTE AND FOR FAILURE TO OBEY 15 Defendants. COURT ORDERS 16 PLAINTIFF’S OBJECTIONS DUE IN FOURTEEN DAYS 17
18 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 19 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 For the reasons stated below, the undersigned will recommend that this matter be 22 dismissed for failure to prosecute and for failure to obey court orders. Plaintiff will be given 23 fourteen days to file objections to this order. 24 I. RELEVANT PROCEDURAL HISTORY 25 On July 18, 2024, Plaintiff’s complaint and his application to proceed in forma pauperis 26 were docketed. ECF Nos. 1, 2, 6. The next day, Plaintiff’s application to proceed in forma 27 pauperis was granted. 28 1 On July 30, 2024, the complaint was screened. ECF No. 8. Ultimately, the undersigned 2 found that the pleading failed to state a claim upon which relief could be granted. Id. at 4-10. As 3 a result, Plaintiff was directed to file an amended complaint. Id. at 12-13. He was given thirty 4 days to do so. Id. at 12. 5 Plaintiff failed to file an amended complaint within the time allotted. As a result, on 6 September 30, 2024, the undersigned ordered Plaintiff to show cause why this matter should not 7 be dismissed for failure to prosecute. ECF No. 9. As an alternative to filing the showing of 8 cause, Plaintiff was also given another opportunity to file an amended complaint. Id. at 2. 9 Plaintiff was given thirty days to take either course of action. Id. 10 More than thirty days have passed and Plaintiff has neither responded to the Court’s order 11 to show cause, nor has he filed an amended complaint. Nor has he filed a request for an extension 12 of time to take either course of action. Plaintiff has not responded to the Court’s orders in any 13 way. 14 II. APPLICABLE LAW 15 A. Federal Rule of Civil Procedure 41(b) and Local Rule 110 16 Federal Rule of Civil Procedure 41 permits this Court to dismiss a matter if a plaintiff fails 17 to prosecute or he fails to comply with a court order. See Fed. R. Civ. P. 41(b). Local Rule 110 18 also permits the imposition of sanctions when a party fails to comply with a court order. L.R. 19 110. 20 B. Malone Factors 21 The Ninth Circuit has clearly identified the factors to consider when dismissing a case for 22 failure to comply with a court order. It writes: 23 A district court must weigh five factors in determining whether to dismiss a case 24 for failure to comply with a court order: “(1) the public’s interest in expeditious 25 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 26 their merits; and (5) the availability of less drastic sanctions.” 27 28 Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (quoting Thompson v. 1 Hous. Auth. of City of Los Angeles, 782 F.2d 829 (9th Cir. 1986) (per curiam)).1 2 III. DISCUSSION 3 A. Rule 41(b) and Local Rule 110 Support Dismissal of This Case 4 The fact that Plaintiff has failed to amend the complaint and that he has also failed to 5 respond to the Court’s order to show cause warrants dismissal of this matter, in accord with Rule 6 41(b). This inaction on Plaintiff’s part also warrants the imposition of sanctions in the form of 7 dismissal of this case, consistent with Local Rule 110. 8 B. Application of Malone Factors Supports the Dismissal of This Case 9 1. Expeditious Resolution of Litigation; Court’s Need to Manage Its Docket 10 Plaintiff has been given more than ample time to file an amended complaint and to 11 respond to the Court’s order to show cause. Yet, he has failed to do either, nor has he contacted 12 the Court to provide an exceptional reason for not having done so. 13 The Eastern District Court has an unusually large caseload.2 “[T]he goal of fairly 14 dispensing justice . . . is compromised when the Court is forced to devote its limited resources to 15 1 These factors are “not a series of conditions precedent before the judge can do anything,” but a 16 “way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006), (quoting Valley Engineers, Inc. v. Elec. Eng’g 17 Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). They are not a script for making what the district judge does appeal-proof, either. Valley Engineers, Inc., 158 F.3d at 1057; In re 18 Phenylpropanolamine, 460 F.3d at 1226 (quoting Valley Engineers, Inc.). 19 It is not required that a district court make explicit findings in order to show that it has considered these factors. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). The 20 Ninth Circuit will review the record to independently determine if the district court has abused its discretion by dismissing a case. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) 21 (citations omitted); Malone, 833 F.2d at 130 (stating not necessary for court to make explicit findings that it has considered five factors; appellate court may review record independently). All 22 the same, because this division of the Eastern District prefers that this analysis be done in every 23 matter that is dismissed for failure to prosecute and/or for failure to obey a court order, the Malone analysis is done herein. 24 2 The Eastern District of California carries one of the largest and most heavily weighted caseloads in the nation. See Office of the Clerk, United States District Court, Eastern District of 25 California, 2024 Annual Report, “Weighted Filings,” p. 35 (2024) (“[O]ur weighted caseload far exceeds the national average . . . ranking us fourth in the nation and first in the Ninth Circuit.”). 26 This problem is compounded by a shortage of jurists to review its pending matters. See generally 27 id. (stating 2024 Biennial Judgeship Survey recommended request for four additional permanent judgeships for Eastern District of California). 28 1 the processing of frivolous and repetitious requests.” Whitaker v. Superior Court of San 2 Francisco, 514 U.S. 208, 210 (1994) (brackets added) (citation omitted). Thus, it follows that 3 keeping this case on the Court’s docket when: (1) it has been determined that the complaint fails 4 to state a claim, and (2) Plaintiff clearly has no interest in prosecuting it in a timely manner, is not 5 a good use of the Court’s already taxed resources, and doing so would stall a quicker disposition 6 of this case. Additionally, in fairness to the many other litigants who currently have cases before 7 the Court, no additional time should be spent on this matter, irrespective of any amended 8 complaint that might be filed by Plaintiff after the issuance of this order. 9 2. Risk of Prejudice to Defendants 10 Furthermore, because Defendants have yet to be served in this case, and, as a result, have 11 not put time and effort into defending against it, there will be no prejudice to them if the matter is 12 dismissed. On the contrary, dismissal will benefit Defendants because they will not have to 13 defend themselves against Plaintiff’s complaint. 14 3. Availability of Less Drastic Sanctions; Favored Disposition of Cases on 15 Merits 16 Finally, given that Plaintiff has allowed this case to languish on the Court’s docket for 17 over five months post-screening, and it has been determined that the complaint has no viable 18 claims, there is no less drastic option than dismissal. Without actionable claims against 19 Defendants, this matter cannot be prosecuted, nor can it be disposed of on its merits. 20 IV. CONCLUSION 21 For these reasons, consistent with Federal Rule of Civil Procedure 41(b) and Local Rule 22 110, and having considered the Malone factors, the undersigned recommends that this matter be 23 dismissed without prejudice for failure to prosecute and for failure to obey a court order. Plaintiff 24 shall be given fourteen days to file objections to this order. 25 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a 26 District Judge to this matter. 27 IT IS FURTHER RECOMMENDED that this matter be DISMISSED for failure to 28 prosecute this case and for failure obey court orders. See Fed. R. Civ. P 41(b); Local Rule 110. 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 3 after being served with these findings and recommendations, Plaintiff may file written objections 4 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 5 and Recommendations,” and it shall not exceed fifteen pages. 6 The Court will not consider exhibits attached to the objections. To the extent that a party 7 wishes to refer to any exhibit, when possible, the party must reference the exhibit in the record by 8 its CM/ECF document and page number or reference the exhibit with specificity. Any pages filed 9 in excess of the fifteen-page limit may be disregarded by the District Judge when conducting the 10 28 U.S.C. § 636(b)(l)(C) review of the findings and recommendations. A party’s failure to file 11 objections within the specified time may result in the waiver of certain rights on appeal. See 12 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Martinez v. Ylst, 951 F.2d 1153 (9th 13 Cir. 1991). 14 15 IT IS SO ORDERED. 16
17 Dated: January 22, 2025 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18
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