Sanders v. MAGEC Metro Tatical Team et al

Filing 28

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Complaint be Dismissed re 1 filed by Phillip Sanders. Motion to Dismiss is referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/29/2012 signed by Magistrate Judge Michael J. Seng on 2/14/2012. (Yu, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP SANDERS,

CASE NO.

1:11-cv-184-LJO-MJS

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Plaintiff,

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FINDINGS AND RECOMMENDATIONS FOR
DISMISSAL OF PLAINTIFF’S COMPLAINT

v.
(ECF No. 27)
MAGEC METRO TACTICAL TEAM, et al.,
FOURTEEN DAY DEADLINE
Defendants.

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/

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Plaintiff Phillip Sanders initiated this action by filing on February 9, 2011, a pro se

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Complaint accompanied by an application to proceed in forma pauperis. (ECF Nos. 1 &

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2.) The Court granted Plaintiff’s motion to proceed in forma pauperis. (ECF No. 5.)

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Plaintiff’s state court prosecution, which arises out of the same factual situation

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giving rise to this action, is still active. Accordingly, the Court determined, pursuant to

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Younger v. Harris, 401 U.S. 37, 43-54 (1971), that it must abstain from acting in this case

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until the state court prosecution is resolved. (Order, ECF No. 7.) Therefore, the Court

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stayed this action pending resolution of the state court criminal charges against Plaintiff.

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The Court also ordered Plaintiff to file a report with the Court every ninety-days advising

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it of the status of the state court prosecution. (Order, ECF No. 7 at 5.)

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Plaintiff failed to follow the Court’s directive to file a status report every ninety-days.

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Plaintiff did not file an initial report until the Court issued an Order to Show Cause

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regarding that failure. (ECF Nos. 14 & 16.) What he did then file restated, in only partially

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intelligible form, his claims in the case and did not appraise the Court of the status of his

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criminal case. (ECF No. 16.) Then, despite this Court’s stay prohibiting further action in

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this case, Plaintiff filed a miscellaneous motion (ECF No. 15) and lodged an amended

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complaint (ECF No. 21). Plaintiff’s later “status report” was not a status report, did not

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comply with the Court’s directive to advise of the status of his state court prosecution, and

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instead repeated Plaintiff’s broad claims. (ECF No. 22.) In response, the Court issued an

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order to Plaintiff to file a new status report by January 25, 2012. (Order, ECF No. 26.) In

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that Order, the Court struck Plaintiff’s amended complaint and gave Plaintiff explicit

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instructions as to what was, and what was not, to be contained in his status reports: They
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were to be properly captioned and advise the Court whether the subject criminal charges

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were still pending against Plaintiff, whether the criminal trial had been scheduled and, if so,

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the scheduled trial date. (Id.) Plaintiff was told that the status reports were not to contain

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any additional information, and that violation of the Order would result in sanctions. (Id.)

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Plaintiff has not complied with the Court’s directive. On January 31, 2012, six days

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after he was to file a status report, he filed a document with the Court that again wholly
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disregarded the Court’s instructions. (ECF No. 27.) Instead of simply providing an update

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on the status of the state criminal prosecution, Plaintiff provided a laundry list of alleged

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wrongs committed against him. (Id.) The document itself is eighteen pages long, and

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consists of a detailed description of his arrest, the procedural history of this action, the

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reasons for the delay in filing his status report, arguable requests that the Court reconsider
its prior orders, a request for the District Judge to intervene, a request that he be allowed

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to correct errors in his original Complaint, a request for financial assistance, requests for

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admissions, case law supporting his case, allegations of police racism, language regarding

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motions to suppress, a reference to a YouTube video of President Obama, language

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regarding his plans to seek asylum in other countries, allegations of judicial misconduct,

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and allegations of a conspiracy against him in this Court. (Id.) Plaintiff includes a short

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section on the status of his criminal case on page 8. (Id. at 8.) Lastly, Plaintiff includes

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what appears to be an amended complaint. (Id. at 12.)

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Plaintiff’s filing in no way complies with the Court’s January 9, 2012, Order.

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Moreover, it is now clear to the Court that the Plaintiff either refuses to comply or is

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incapable of complying with the Court’s orders. Accordingly, the Court recommends that

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Plaintiff’s action be dismissed.
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Local Rule 110 provides that “failure of counsel or of a party to comply with these

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Rules or with any order of the Court may be grounds for imposition by the Court of any and

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all sanctions . . . within the inherent power of the Court.” District courts have the inherent

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power to control their dockets and “in the exercise of that power, they may impose

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sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing

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Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice,
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based on a party’s failure to prosecute an action, failure to obey a court order, or failure to

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comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61

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(9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of

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complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to
comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone

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v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal

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for lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey

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a Court order, or failure to comply with local rules, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the public’s interest in expeditiously resolving
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litigation and the Court’s interest in managing its docket weigh in favor of dismissal. In

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these respects, the Court simply can not, and should not, indulge this Plaintiff’s blatant

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disregard of its orders; the Court can not continue to review and respond to Plaintiff’s

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inappropriate filings and still timely address the vast caseload before it. The third factor,

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risk of prejudice to the defendant, also weighs in favor of dismissal, since a presumption

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of injury arises from delay in resolving an action. Anderson v. Air West, 542 F.2d 522, 524
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(9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their

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merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Given

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Plaintiff’s non-responsiveness to the Court’s earlier orders and his pro se and in forma

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pauperis status, “less drastic alternatives” other than those taken to date (i.e., repeated

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orders to Plaintiff to comply) do not exist and the ultimate sanction of dismissal is
warranted. Malone, 833 at 132-33. Here, after failing to comply with the Court’s orders,

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the Court gave Plaintiff another chance and explained clearly what was and was not to be

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included in his status reports. (ECF No. 25.) The Court warned Plaintiff that sanctions

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would be imposed if Plaintiff failed to obey its Order. (Id.) Instead of obeying, Plaintiff filed,

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six days after the Court’s deadline, an eighteen page document which so blatantly

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disregarded the Court’s clear and simple directive as to demonstrate a complete

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unwillingness or inability to follow orders and rules necessary for the prosecution of an

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action. (ECF No. 27.) Plaintiff’s continued willful violation of the Court’s orders cannot be

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permitted to continue. No lesser sanction than dismissal is appropriate.

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Accordingly, it is RECOMMENDED that this matter be DISMISSED by the District
Judge.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen days after being served with these findings and recommendations, any

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party may file written objections with the court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within ten days

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after service of the objections. The parties are advised that failure to file objections within

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the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ci4d6

February 14, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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