1 2 3 4 5 6 7 10 11 DIMITRI Z. STORM, Case No. 1:24-cv-00215-HBK 12 Plaintiff, ORDER TO RANDOMLY ASSIGN TO DISTRICT JUDGE 13 v. 14 OFFICE OF THE CALIFORNIA F DI IN SD MI IN SSG S A A CTN ID O NR E WC IO TM HOM UE TN D PRA ET JI UO DN IS C T EO 1 GOVERNOR, GAVIN NEWSOM, 14-DAY DEADLINE OF CALIFORNIA, SECRETARY PEOPLE OF THE STATE OF 18 Defendants. 19 20 Plaintiff Dimitri Z. Storm is a state prisoner proceeding pro se and in forma pauperis in 21 this civil rights action. For the reasons set forth below, the undersigned recommends that the 22 District Court dismiss this action without prejudice for Plaintiff’s failure to comply with a court 23 order and prosecute this action. 25 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983 on 26 February 20, 2024. (Doc. No. 1, “Complaint”). On March 22, 2024, the Court struck Plaintiff’s 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. Cal. 2023). 1 Complaint because it was illegible and directed Defendant to refile a legible Complaint within 30 2 days. (See generally Doc. No. 11). The Court enclosed a blank civil rights complaint form with 3 its Order for Plaintiff’s use as appropriate. (Id. at 2, ¶3). The Court expressly warned that 4 Plaintiff that his “failure to timely comply with this Order will result in the undersigned 5 recommending the district court dismiss this case for Plaintiff’s failure to comply with a court 6 order and prosecute this action.” (Id., ¶ 4). As of the date of these Findings and 7 Recommendations, Plaintiff has failed to submit a legible complaint for the Court to screen under 8 28 U.S.C. § 1915A, or request a further extension of time to comply, and the time to do so has 9 expired. (See docket).2 11 A. Legal Standard 12 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 13 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 14 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 15 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 16 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . 17 any order of the Court may be grounds for the imposition by the Court of any and all sanctions 18 . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent 19 power to control their dockets” and, in exercising that power, may impose sanctions, including 20 dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th 21 Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey 22 a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 23 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone 24 v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with 25 a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure 26 to prosecute and to comply with local rules). In determining whether to dismiss an action, the 27
28 2 The undesigned afforded eight days for mailing before issuing these Findings and Recommendation. 1 Court must consider the following factors: (1) the public’s interest in expeditious resolution of 2 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; 3 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 4 drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 5 1988). 6 B. Analysis 7 After considering each of the above-stated factors, the undersigned concludes dismissal 8 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 9 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 10 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 11 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 12 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 13 filling judicial vacancies, which was further exacerbated by the COVID-19 pandemic, operates 14 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 15 Emergency in the Eastern District of California. This Court’s time is better spent on its other 16 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 17 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 18 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 19 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 20 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 21 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 22 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 23 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 24 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 25 the third factor weighs in favor of dismissal. 26 The fourth factor usually weighs against dismissal because public policy favors the 27 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 28 However, “this factor lends little support to a party whose responsibility it is to move a case 1 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 2 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 3 1228 (9th Cir. 2006) (citation omitted).
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1 2 3 4 5 6 7 10 11 DIMITRI Z. STORM, Case No. 1:24-cv-00215-HBK 12 Plaintiff, ORDER TO RANDOMLY ASSIGN TO DISTRICT JUDGE 13 v. 14 OFFICE OF THE CALIFORNIA F DI IN SD MI IN SSG S A A CTN ID O NR E WC IO TM HOM UE TN D PRA ET JI UO DN IS C T EO 1 GOVERNOR, GAVIN NEWSOM, 14-DAY DEADLINE OF CALIFORNIA, SECRETARY PEOPLE OF THE STATE OF 18 Defendants. 19 20 Plaintiff Dimitri Z. Storm is a state prisoner proceeding pro se and in forma pauperis in 21 this civil rights action. For the reasons set forth below, the undersigned recommends that the 22 District Court dismiss this action without prejudice for Plaintiff’s failure to comply with a court 23 order and prosecute this action. 25 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983 on 26 February 20, 2024. (Doc. No. 1, “Complaint”). On March 22, 2024, the Court struck Plaintiff’s 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. Cal. 2023). 1 Complaint because it was illegible and directed Defendant to refile a legible Complaint within 30 2 days. (See generally Doc. No. 11). The Court enclosed a blank civil rights complaint form with 3 its Order for Plaintiff’s use as appropriate. (Id. at 2, ¶3). The Court expressly warned that 4 Plaintiff that his “failure to timely comply with this Order will result in the undersigned 5 recommending the district court dismiss this case for Plaintiff’s failure to comply with a court 6 order and prosecute this action.” (Id., ¶ 4). As of the date of these Findings and 7 Recommendations, Plaintiff has failed to submit a legible complaint for the Court to screen under 8 28 U.S.C. § 1915A, or request a further extension of time to comply, and the time to do so has 9 expired. (See docket).2 11 A. Legal Standard 12 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 13 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 14 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 15 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 16 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . 17 any order of the Court may be grounds for the imposition by the Court of any and all sanctions 18 . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent 19 power to control their dockets” and, in exercising that power, may impose sanctions, including 20 dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th 21 Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey 22 a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 23 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone 24 v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with 25 a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure 26 to prosecute and to comply with local rules). In determining whether to dismiss an action, the 27
28 2 The undesigned afforded eight days for mailing before issuing these Findings and Recommendation. 1 Court must consider the following factors: (1) the public’s interest in expeditious resolution of 2 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; 3 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 4 drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 5 1988). 6 B. Analysis 7 After considering each of the above-stated factors, the undersigned concludes dismissal 8 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 9 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 10 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 11 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 12 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 13 filling judicial vacancies, which was further exacerbated by the COVID-19 pandemic, operates 14 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 15 Emergency in the Eastern District of California. This Court’s time is better spent on its other 16 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 17 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 18 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 19 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 20 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 21 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 22 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 23 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 24 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 25 the third factor weighs in favor of dismissal. 26 The fourth factor usually weighs against dismissal because public policy favors the 27 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 28 However, “this factor lends little support to a party whose responsibility it is to move a case 1 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 2 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 3 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 4 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 5 Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of district court’s involuntary 6 dismissal with prejudice of habeas petition where petitioner failed to timely respond to court 7 order and noting “the weight of the docket-managing factor depends upon the size and load of the 8 docket, and those in the best position to know what that is are our beleaguered trial judges.”). 9 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 10 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 11 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s March 22, 2024 Order 12 expressly warned Plaintiff that his failure to respond to the Court’s Order would result in a 13 recommendation of dismissal of this action. (Doc. No. 11 at 2, ¶ 4). Thus, Plaintiff had adequate 14 warning that dismissal could result from his noncompliance. And the instant dismissal is a 15 dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 16 satisfying the fifth factor. 17 After considering the factors set forth supra and binding case law, the undersigned 18 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 19 Accordingly, it is hereby ORDERED: 20 The Clerk of Court randomly assign this case to a district judge for consideration of these 21 Findings and Recommendations. 22 It is further RECOMMENDED: 23 This action be DISMISSED without prejudice for Plaintiff’s failure to obey court orders 24 and failure to prosecute. 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 28 after being served with a copy of these Findings and Recommendations, a party may file written 1 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 2 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge 3 | will review these Findings and Recommendations under 28 U.S.C. § 636(b)(I)(C). A party’s 4 | failure to file objections within the specified time may result in the waiver of certain rights on 5 | appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 6 Dated: April 30, 2024 law □□□ foareA Zacks 8 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE
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