1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 TODD ROBBEN, Case No. 3:15-cv-00530-RFB-CBC
8 Plaintiff, ORDER
9 v.
10 CARSON CITY, et al
11 Defendants.
12 I. INTRODUCTION 13 14 Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint. ECF No. 63. For 15 the following reasons, the Court grants the motion. 16 II. BACKGROUND 17 Plaintiff Todd Robben (“Plaintiff”), a pro se individual, first sued Defendants on October 18 22, 2015. ECF No.1. In his complaint Plaintiff asserted causes of action for failure to supervise 19 20 under 42 U.S.C. § 1983, malicious prosecution, First Amendment violations, declaratory relief, 21 Fourth Amendment violations, sixth amendment violations, violations of the Racketeer Influenced 22 and Corrupt Organizations Act (“RICO”) Act pursuant to 18 U.S.C. § 1962, false arrest and 23 imprisonment, intentional infliction of emotional distress, civil conspiracy, defamation, abuse of 24 process, negligent hiring, retention, supervision and training, and Eighth Amendment violations 25 26 stemming from events that occurred between 2012 and 2014 while Plaintiff was in and out of 27 prison in Carson City, Nevada. Id. Defendants answered on December 15, 2015. ECF No. 14. The 28 1 Court granted Plaintiff’s motion to stay the case on April 19, 2016 for sixty days. ECF No. 41. On 2 April 24, 2016, Plaintiff moved the Court for appointment of counsel. ECF No. 42. The Court 3 denied the motion for appointment of counsel without prejudice on September 30, 2017. ECF No. 4 57. On December 11, 2018, Defendants filed the instant motion to dismiss Plaintiff’s complaint 5 6 pursuant to Rule 41(b) of the Federal Rules of Procedure. Plaintiff opposed the motion on January 7 2, 2019. ECF No. 66. He also filed suropposition on January 25, 2019. ECF No. 66. Defendants 8 replied on December 28, 2018. ECF No. 64. 9 III. DISCUSSION 10 A. Rule 41 Motion 11 12 Rule 41(b) of the Federal Rules of Civil Procedure states that “[i]f the plaintiff fails to 13 prosecute or to comply with these rules or a court order, a defendant may move to dismiss the 14 action or any claim against it.” Fed. R. Civ. P. 41(b). When considering whether to dismiss for 15 failure to prosecute or comply, district courts weigh the following factors: “(1) the public's interest 16 in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of 17 18 prejudice to the defendants; (4) the public policy favoring the disposition of cases on their merits; 19 and (5) the availability of less drastic sanctions.” In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). 20 The Court discusses each of these factors in turn. 21 1. The Public’s Interest in Expeditious Resolution of Litigation 22 The Ninth Circuit has noted that this factor “always favors dismissal.” Pagtalunan v. 23 24 Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 25 In this case, Plaintiff filed his complaint on October 2015. The last filing he made prior to 26 Defendants filing their motion was on December 26, 2017, when he filed a notice of change of 27 address. The change of address was to a prison in Tracy, California, where it appears Plaintiff is 28 1 currently incarcerated. Almost a year, or 350 days, passed between Plaintiff’s last filling and the 2 instant motion. The Court finds that this factor favors dismissal. 3 2. Court’s Need to Manage its Docket 4 “The trial judge is in the best position to determine whether the delay in a particular case 5 6 interferes with docket management and the public interest.” Id. Plaintiff’s failure to prosecute has 7 allowed this case to languish on the Court’s docket for almost a year, and the case began in 2015— 8 four years ago. The Court also finds that this factor weighs in favor of dismissal. 9 3. Risk of Prejudice to Defendants 10 The Court must examine prejudice in conjunction with the plaintiff’s reason for delay. 11 12 Pagtalunan, 291 F.3d at 642. When considering the relationship between delay and prejudice, the 13 Court must consider the prejudice that comes in two forms: “loss of evidence and loss of memory 14 by a witness.” Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th Cir. 15 1980). “In every case of delay, a district court in the exercise of its discretion should consider 16 whether such losses have occurred and if so, whether they are significant.” Id. 17 18 In their motion papers, Defendants claim that they are prejudiced because some individuals 19 and witnesses no longer work for Carson City or are no longer in the area. Given the long delay in 20 the litigation in this case, this is a significant consideration for the Court. This is especially true 21 for a case such as this one where the memories and recollections of individuals will be a central 22 part of the evidence in the case. The Court thus finds that this factor weights in favor of dismissal. 23 24 Additionally, the Court finds that Plaintiff has given no explanation for his unreasonable 25 delay. Plaintiff, who is pro se and incarcerated, explains in his (untimely) filed opposition that he 26 “is near release from prison” in California, but he does not explain how the fact that he is in prison 27
28 1 has prevented him from litigating this case. Plaintiff does not contest the fact that he has continued 2 to prosecute other cases in the Eastern District of California while incarcerated. 3 4. Public Policy Favoring Disposition of Cases on Their Merits 4 Because public policy favors disposition of cases on the merits, this factor weighs against 5 6 dismissal. Pagtalunan, 291 F.3d at 643. 7 5. Availability of Less Drastic Alternatives 8 Plaintiff has not been previously warned by the Court of the possibility of dismissal for 9 failure to prosecute. This factor thus weighs against dismissal. Calloway v. Howard, 651 F. App’x 10 637, 639 (9th Cir. 2016) (finding alternatives less than immediate dismissal available when district 11 12 court sua sponte dismissed case despite pro se plaintiff’s statements that he was ready for trial). 13 The Court finds that four of the five factors weigh in favor of dismissal. Accordingly, the 14 Court will grant Defendants’ motion. The Court now turns to address two issues raised in 15 Plaintiff’s opposition papers. 16 B. Plaintiff’s Prior Motion for Appointment of Counsel 17 18 Plaintiff has previously moved for counsel in this case, and the Court has denied that 19 motion without prejudice. To the extent that the Court’s prior denial of Plaintiff’s motion for 20 appointment of counsel without prejudice implied that the Court would reconsider Plaintiff’s 21 motion for appointment of counsel after Plaintiff’s release from prison, the Court clarifies any 22 implied possible finding. The Court has the discretion to appoint counsel for indigent litigants 23 24 when there are exceptional circumstances. Palmer v. Valdez, 560 F.3d 965, 969–70 (9th Cir. 2009).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 TODD ROBBEN, Case No. 3:15-cv-00530-RFB-CBC
8 Plaintiff, ORDER
9 v.
10 CARSON CITY, et al
11 Defendants.
12 I. INTRODUCTION 13 14 Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint. ECF No. 63. For 15 the following reasons, the Court grants the motion. 16 II. BACKGROUND 17 Plaintiff Todd Robben (“Plaintiff”), a pro se individual, first sued Defendants on October 18 22, 2015. ECF No.1. In his complaint Plaintiff asserted causes of action for failure to supervise 19 20 under 42 U.S.C. § 1983, malicious prosecution, First Amendment violations, declaratory relief, 21 Fourth Amendment violations, sixth amendment violations, violations of the Racketeer Influenced 22 and Corrupt Organizations Act (“RICO”) Act pursuant to 18 U.S.C. § 1962, false arrest and 23 imprisonment, intentional infliction of emotional distress, civil conspiracy, defamation, abuse of 24 process, negligent hiring, retention, supervision and training, and Eighth Amendment violations 25 26 stemming from events that occurred between 2012 and 2014 while Plaintiff was in and out of 27 prison in Carson City, Nevada. Id. Defendants answered on December 15, 2015. ECF No. 14. The 28 1 Court granted Plaintiff’s motion to stay the case on April 19, 2016 for sixty days. ECF No. 41. On 2 April 24, 2016, Plaintiff moved the Court for appointment of counsel. ECF No. 42. The Court 3 denied the motion for appointment of counsel without prejudice on September 30, 2017. ECF No. 4 57. On December 11, 2018, Defendants filed the instant motion to dismiss Plaintiff’s complaint 5 6 pursuant to Rule 41(b) of the Federal Rules of Procedure. Plaintiff opposed the motion on January 7 2, 2019. ECF No. 66. He also filed suropposition on January 25, 2019. ECF No. 66. Defendants 8 replied on December 28, 2018. ECF No. 64. 9 III. DISCUSSION 10 A. Rule 41 Motion 11 12 Rule 41(b) of the Federal Rules of Civil Procedure states that “[i]f the plaintiff fails to 13 prosecute or to comply with these rules or a court order, a defendant may move to dismiss the 14 action or any claim against it.” Fed. R. Civ. P. 41(b). When considering whether to dismiss for 15 failure to prosecute or comply, district courts weigh the following factors: “(1) the public's interest 16 in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of 17 18 prejudice to the defendants; (4) the public policy favoring the disposition of cases on their merits; 19 and (5) the availability of less drastic sanctions.” In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). 20 The Court discusses each of these factors in turn. 21 1. The Public’s Interest in Expeditious Resolution of Litigation 22 The Ninth Circuit has noted that this factor “always favors dismissal.” Pagtalunan v. 23 24 Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 25 In this case, Plaintiff filed his complaint on October 2015. The last filing he made prior to 26 Defendants filing their motion was on December 26, 2017, when he filed a notice of change of 27 address. The change of address was to a prison in Tracy, California, where it appears Plaintiff is 28 1 currently incarcerated. Almost a year, or 350 days, passed between Plaintiff’s last filling and the 2 instant motion. The Court finds that this factor favors dismissal. 3 2. Court’s Need to Manage its Docket 4 “The trial judge is in the best position to determine whether the delay in a particular case 5 6 interferes with docket management and the public interest.” Id. Plaintiff’s failure to prosecute has 7 allowed this case to languish on the Court’s docket for almost a year, and the case began in 2015— 8 four years ago. The Court also finds that this factor weighs in favor of dismissal. 9 3. Risk of Prejudice to Defendants 10 The Court must examine prejudice in conjunction with the plaintiff’s reason for delay. 11 12 Pagtalunan, 291 F.3d at 642. When considering the relationship between delay and prejudice, the 13 Court must consider the prejudice that comes in two forms: “loss of evidence and loss of memory 14 by a witness.” Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th Cir. 15 1980). “In every case of delay, a district court in the exercise of its discretion should consider 16 whether such losses have occurred and if so, whether they are significant.” Id. 17 18 In their motion papers, Defendants claim that they are prejudiced because some individuals 19 and witnesses no longer work for Carson City or are no longer in the area. Given the long delay in 20 the litigation in this case, this is a significant consideration for the Court. This is especially true 21 for a case such as this one where the memories and recollections of individuals will be a central 22 part of the evidence in the case. The Court thus finds that this factor weights in favor of dismissal. 23 24 Additionally, the Court finds that Plaintiff has given no explanation for his unreasonable 25 delay. Plaintiff, who is pro se and incarcerated, explains in his (untimely) filed opposition that he 26 “is near release from prison” in California, but he does not explain how the fact that he is in prison 27
28 1 has prevented him from litigating this case. Plaintiff does not contest the fact that he has continued 2 to prosecute other cases in the Eastern District of California while incarcerated. 3 4. Public Policy Favoring Disposition of Cases on Their Merits 4 Because public policy favors disposition of cases on the merits, this factor weighs against 5 6 dismissal. Pagtalunan, 291 F.3d at 643. 7 5. Availability of Less Drastic Alternatives 8 Plaintiff has not been previously warned by the Court of the possibility of dismissal for 9 failure to prosecute. This factor thus weighs against dismissal. Calloway v. Howard, 651 F. App’x 10 637, 639 (9th Cir. 2016) (finding alternatives less than immediate dismissal available when district 11 12 court sua sponte dismissed case despite pro se plaintiff’s statements that he was ready for trial). 13 The Court finds that four of the five factors weigh in favor of dismissal. Accordingly, the 14 Court will grant Defendants’ motion. The Court now turns to address two issues raised in 15 Plaintiff’s opposition papers. 16 B. Plaintiff’s Prior Motion for Appointment of Counsel 17 18 Plaintiff has previously moved for counsel in this case, and the Court has denied that 19 motion without prejudice. To the extent that the Court’s prior denial of Plaintiff’s motion for 20 appointment of counsel without prejudice implied that the Court would reconsider Plaintiff’s 21 motion for appointment of counsel after Plaintiff’s release from prison, the Court clarifies any 22 implied possible finding. The Court has the discretion to appoint counsel for indigent litigants 23 24 when there are exceptional circumstances. Palmer v. Valdez, 560 F.3d 965, 969–70 (9th Cir. 2009). 25 When determining whether “exceptional circumstances” exist, the Court should consider “the 26 likelihood of success on the merits as well as the ability of the petitioner to articulate his claims 27 pro se in light of the complexity of the legal issues involved.” Id. The likelihood of success on the 28 1 merits and the complexity of the legal issues involved must be considered in tandem. Id. The Court 2 finds that Plaintiff has no likelihood of success on the merits. Plaintiff alleges a vast conspiracy by 3 various Carson City district attorneys, judges, and police officers to arrest Plaintiff on false 4 criminal charges, and to imprison him on said false charges. Pl.’s Compl. at 6 – 21, ECF No.1-1. 5 6 Plaintiff alleges without evidence or support that Carson City has a custom, policy or practice of 7 violating Plaintiff’s constitutional rights. Id. Plaintiff alleges that the conspiracy “encompasses the 8 FBI and possibly this Court and Brian Brown and various operative[sic] from Carson City.” Pl.’s 9 Emergency Mot. Appoint Counsel at 6, ECF No. 42. Because the Court finds that Plaintiff has not 10 demonstrated a likelihood of success on the merits or shown the complexity of the legal issues 11 12 involved, the Court does not find that Plaintiff has demonstrated exceptional circumstances 13 warranting appointment of counsel. 14 C. Plaintiff’s Failure to Comply With Prior Court Orders 15 The Court further possess inherent powers to sanctions parties for improper or bad faith 16 litigation conduct or abuses. F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 17 18 244 F.3d 1128, 1136-37 (9th Cir. 2001). This includes dismissal for litigation abuses. Id. 19 Plaintiff has previously been instructed to not make implicit threats of violence in his 20 communications to the Court. See Tr. of Hr’g on Mar. 21, 2016 at 11 (“It’s not appropriate, Mr. 21 Robben, to call my chambers to suggest that you’re going to engage in armed protest . . . or to 22 suggest anything that might even be indirectly considered a threat. If I receive any further 23 24 communication like that in any of your cases, they will be dismissed with prejudice.”). Yet Plaintiff 25 proceeds to do just that in his opposition and suropposition to the instant motion. In his opposition, 26 Plaintiff writes that “it is very, very critical that this court allow the Plaintiff his day in court to 27 resolve matters peacefully and legally.” Pl.’s Opp. at 1, ECF No. 65. Plaintiff then proceeds to 28 1 | write in his suropposition that “Rest assured, the debt will be paid very, very soon—one way, or 2 another...” Pl.’s Suropp. at 1, ECF No. 66. Plaintiff has a history of making indirect and direct 3 threats in this case. [ECF Nos. 45, 49 and 50] (See ECF No. 49, “7 can kill each and every one 4 5 involved”) The Court finds both of these statements to constitute implicit threats consistent with a 6 | pattern that Plaintiff has been warned not to continue. The Court thus finds that they warrant 7 | independent and adequate separate grounds for dismissal. 8 9 IV. CONCLUSION
10 IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiff's
Complaint (ECF No. 63) is GRANTED. The Court dismisses Plaintiffs Complaint with prejudice. D The Clerk of the Court is instructed to close the case.
13 4 DATED: September 30, 2019. As 16 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28
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