1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CAITLIN NICOLE PETERS, No. 2:23-cv-00684-DAD-CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 CHARLES ERVIN, 15 Defendant. 16 17 Plaintiff, proceeding pro se, filed a complaint against several defendants alleging 18 constitutional violations related to state criminal proceedings and state civil child custody 19 proceedings; plaintiff also requested leave to proceed in forma pauperis. (See ECF Nos. 1, 2.) 20 The court granted plaintiff’s IFP request and dismissed the complaint; however, plaintiff was 21 granted 28 days to amend the complaint and was warned that failure to do so by the required 22 deadline could result in sanctions, including “dismissal of the action with prejudice pursuant to 23 Federal Rule of Civil Procedure 41(b).” (ECF No. 3 at 5.) 24 On November 13, 2023, plaintiff filed a first amended complaint alleging numerous 25 constitutional violations. (ECF No. 5.) Plaintiff also requested electronic filing access. (ECF 26 No. 6.) The court dismissed plaintiff’s first amended complaint and granted further leave to 27 amend. (ECF No. 7.) The court granted plaintiff’s request to participate in electronic filing with 28 respect to service of documents but denied plaintiff’s request to file documents electronically. 1 (Id.) 2 On January 22, 2024, the court granted plaintiff’s motion for extension of time to file a 3 Second Amended Complaint. (ECF No. 9.) Plaintiff was ordered to file a Second Amended 4 Complaint within 28 days; i.e., by February 19, 2024. (Id.) When that deadline passed with no 5 filings from plaintiff, the court on February 29, 2024, issued an order to show cause why this 6 action should not be dismissed with prejudice under Rule 41(b) for failure to prosecute this case, 7 and failure to comply with the court’s prior order. (ECF No. 10.) Plaintiff was given another 14 8 days to show cause and was warned—in even stricter terms—that failure to comply “will result in 9 a recommendation that this action be dismissed with prejudice” under Rule 41(b). (Id. at 2.) 10 More than 14 days have passed without a response from plaintiff. Accordingly, the undersigned 11 recommends dismissing this case with prejudice under Rule 41(b). 12 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 13 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 14 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 15 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 16 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 17 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 18 under Rule 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to 19 follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 20 F.2d 1258, 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil 21 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 22 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 23 curiam) (stating that district courts have inherent power to control their dockets and may impose 24 sanctions including dismissal or default). This court’s Local Rules are in accord. See E.D. Cal. 25 Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any order of 26 the Court may be grounds for imposition by the Court of any and all sanctions authorized by 27 statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) 28 (providing that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the 1 court’s Local Rules, and other applicable law may support, among other things, dismissal of that 2 party’s action). 3 A court must weigh five factors in determining whether to dismiss a case for failure to 4 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 5 rules. See Ferdik, 963 F.2d at 1260. These are: 6 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 7 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 8 (5) the availability of less drastic alternatives. 9 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 10 Here, the first two factors weigh in favor of dismissal, because this case was delayed by 11 plaintiff’s failure to take the steps necessary to move this case forward. The third factor also 12 favors dismissal, because, at a minimum, defendants have been deprived of an opportunity to be 13 promptly notified of the lawsuit and prepare their defense. With the passage of time, memories 14 fade and evidence becomes stale. The fifth factor also favors dismissal because the court has 15 already attempted less drastic alternatives. Specifically, after granting plaintiff two opportunities 16 to amend the complaint and granting plaintiff’s motion for extension of time, the court provided 17 plaintiff a final opportunity by issuing an order to show cause. However, plaintiff filed nothing 18 since the motion for extension of time, leaving the court with little alternative but to recommend 19 dismissal. Further, given plaintiff’s request to proceed IFP, it is unlikely that monetary sanctions 20 would be effective. 21 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 22 factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to prosecute 23 the case and comply with the rules that precludes a resolution on the merits. Therefore, after 24 carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate. 25 //////// 26 //////// 27 //////// 28 //////// 1 RECOMMENDATIONS 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiffs claims be DISMISSED with prejudice pursuant to Federal Rule of Civil 4 Procedure 41(b); and 5 2. The Clerk of Court be directed to close this case. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 8 | days after being served with these findings and recommendations, any party may file written 9 || objections with the court and serve a copy on all parties.
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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 CAITLIN NICOLE PETERS, No. 2:23-cv-00684-DAD-CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 CHARLES ERVIN, 15 Defendant. 16 17 Plaintiff, proceeding pro se, filed a complaint against several defendants alleging 18 constitutional violations related to state criminal proceedings and state civil child custody 19 proceedings; plaintiff also requested leave to proceed in forma pauperis. (See ECF Nos. 1, 2.) 20 The court granted plaintiff’s IFP request and dismissed the complaint; however, plaintiff was 21 granted 28 days to amend the complaint and was warned that failure to do so by the required 22 deadline could result in sanctions, including “dismissal of the action with prejudice pursuant to 23 Federal Rule of Civil Procedure 41(b).” (ECF No. 3 at 5.) 24 On November 13, 2023, plaintiff filed a first amended complaint alleging numerous 25 constitutional violations. (ECF No. 5.) Plaintiff also requested electronic filing access. (ECF 26 No. 6.) The court dismissed plaintiff’s first amended complaint and granted further leave to 27 amend. (ECF No. 7.) The court granted plaintiff’s request to participate in electronic filing with 28 respect to service of documents but denied plaintiff’s request to file documents electronically. 1 (Id.) 2 On January 22, 2024, the court granted plaintiff’s motion for extension of time to file a 3 Second Amended Complaint. (ECF No. 9.) Plaintiff was ordered to file a Second Amended 4 Complaint within 28 days; i.e., by February 19, 2024. (Id.) When that deadline passed with no 5 filings from plaintiff, the court on February 29, 2024, issued an order to show cause why this 6 action should not be dismissed with prejudice under Rule 41(b) for failure to prosecute this case, 7 and failure to comply with the court’s prior order. (ECF No. 10.) Plaintiff was given another 14 8 days to show cause and was warned—in even stricter terms—that failure to comply “will result in 9 a recommendation that this action be dismissed with prejudice” under Rule 41(b). (Id. at 2.) 10 More than 14 days have passed without a response from plaintiff. Accordingly, the undersigned 11 recommends dismissing this case with prejudice under Rule 41(b). 12 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 13 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 14 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 15 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 16 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 17 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 18 under Rule 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to 19 follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 20 F.2d 1258, 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil 21 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 22 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 23 curiam) (stating that district courts have inherent power to control their dockets and may impose 24 sanctions including dismissal or default). This court’s Local Rules are in accord. See E.D. Cal. 25 Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any order of 26 the Court may be grounds for imposition by the Court of any and all sanctions authorized by 27 statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) 28 (providing that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the 1 court’s Local Rules, and other applicable law may support, among other things, dismissal of that 2 party’s action). 3 A court must weigh five factors in determining whether to dismiss a case for failure to 4 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 5 rules. See Ferdik, 963 F.2d at 1260. These are: 6 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 7 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 8 (5) the availability of less drastic alternatives. 9 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 10 Here, the first two factors weigh in favor of dismissal, because this case was delayed by 11 plaintiff’s failure to take the steps necessary to move this case forward. The third factor also 12 favors dismissal, because, at a minimum, defendants have been deprived of an opportunity to be 13 promptly notified of the lawsuit and prepare their defense. With the passage of time, memories 14 fade and evidence becomes stale. The fifth factor also favors dismissal because the court has 15 already attempted less drastic alternatives. Specifically, after granting plaintiff two opportunities 16 to amend the complaint and granting plaintiff’s motion for extension of time, the court provided 17 plaintiff a final opportunity by issuing an order to show cause. However, plaintiff filed nothing 18 since the motion for extension of time, leaving the court with little alternative but to recommend 19 dismissal. Further, given plaintiff’s request to proceed IFP, it is unlikely that monetary sanctions 20 would be effective. 21 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 22 factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to prosecute 23 the case and comply with the rules that precludes a resolution on the merits. Therefore, after 24 carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate. 25 //////// 26 //////// 27 //////// 28 //////// 1 RECOMMENDATIONS 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiffs claims be DISMISSED with prejudice pursuant to Federal Rule of Civil 4 Procedure 41(b); and 5 2. The Clerk of Court be directed to close this case. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 8 | days after being served with these findings and recommendations, any party may file written 9 || objections with the court and serve a copy on all parties. Such a document should be captioned 10 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 11 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 12 || objections. The parties are advised that failure to file objections within the specified time may 13 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 14 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 15 | Dated: March 21, 2024 / ae □□ / a Ly a 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 || 21,pete.0684 19 20 21 22 23 24 25 26 27 28