Hamilton v. Unknown

Filing 45

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 1/23/2014 recommending that action be dismissed re 15 . Referred to Judge Anthony W. Ishii; Objections to F&R due by 2/18/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GEORGE HAMILTON,

Case No. 1:13-cv-01462-AWI-MJS (PC)

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Plaintiff,
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v.

FINDINGS AND RECOMMENDATIONS
DISMISSING ACTION WITHOUT
PREJUDICE

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UNKNOWN,

(ECF No. 15)

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Defendant.

FOURTEEN DAY OBJECTION DEADLINE

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I.

PROCEDURAL HISTORY

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This action was opened in the United States District Court for the Northern District of
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California on July 18, 2013 based upon a letter from Plaintiff, an inmate at Kern Valley
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State Prison (“KVSP”), to the Honorable Thelton E. Henderson alleging that prison staff had

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participated in a "pattern of racketeering activity" which led to an "extremely dangerous and
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stressful prison environment." Plaintiff was notified his action would be dismissed unless,
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by August 26, 2013, he submitted a complaint on the proper form and either paid the $400
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filing fee or submitted a completed in forma pauperis (“IFP”) application. (ECF Nos. 2, 3.)

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The August 26th deadline passed without Plaintiff responding. On September 10, 2013, the
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case was transferred to this District.
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On September 30, 2013, Plaintiff was again ordered to, no later than November 4,
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2013, submit a complaint on the proper form and either pay the $400 filing fee or submit a
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complete IFP application, or otherwise show cause why the action should not be dismissed.
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(ECF No. 15.) Plaintiff was expressly advised in the order that his July 18, 2013 letter was
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not a proper pleading and why it did not state any federal claim. Plaintiff later requested,

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and was granted, an extension of the November 4 deadline to January 3, 2014. (ECF Nos.

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26, 36.)
On January 2, 2014, Plaintiff responded to the September 30, 2013 order. (ECF No.

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43.) However, he did not comply with the requirement to file a civil rights complaint on the

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proper form or show good cause for his failure to do so. Accordingly, this action should be

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dismissed.

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II.

PLAINTIFF’S POSITION

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Plaintiff is currently confined at KVSP. He claims the California Department of

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Corrections and Rehabilitation (“CDCR”) is purposely strengthening certain Hispanic

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inmate groups or gangs at its institutions and conspiring with these groups or gangs in

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racketeering activities. This has and will result in race riots targeting African American

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inmates.
Plaintiff argues he is likely to succeed in class-action RICO civil claims against the

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CDCR enterprise on behalf of African American inmates as alleged in his July 18, 2013

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letter to Judge Henderson and in his separate motion for injunctive relief.

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Plaintiff argues that he has been transferred to administrative Segregation and

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separated from unspecified legal property, that he has a hand condition making it painful to

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write, and that he is seeking professional counsel.
Plaintiff argues this Court lacks jurisdiction and is not a proper venue for his case.

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III.

ANALYSIS

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A.

Failure to Obey Court Order and Failure to Prosecute

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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, failure to obey a court order, or failure to comply

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

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for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992) (dismissal for failure to comply with an order requiring amendment of a complaint);

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

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

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(dismissal 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 a

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court order, or failure to comply with local rules, the Court must consider several factors: (1)

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

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

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of cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782

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F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at

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

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In the instant case, the public’s interest in expeditiously resolving this litigation and

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the Court’s interest in managing its docket weigh in favor of dismissal. The third factor, risk

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of prejudice to Defendant, also weighs in favor of dismissal, since a presumption of injury

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arises from the occurrence of unreasonable delay in prosecuting this action. Anderson v.

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Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring

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disposition of cases on their merits -- is outweighed here because Plaintiff has failed to

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comply with the Court’s order that he file a civil rights complaint. Notwithstanding repeated

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extensions of time totaling over three months, Plaintiff has before the Court no pleading

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and no cognizable claim for relief against any named defendant. Finally, as for the

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availability of lesser sanctions, at this stage in the proceedings there is little available which

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would constitute a satisfactory lesser sanction while preserving scarce Court resources.

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Plaintiff has not paid the filing fee for this action and is likely unable to pay, making

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monetary sanctions of little use.

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B.

No Good Cause for Failure to Comply

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Plaintiff does not suggest any justification for continuing this action. Notwithstanding

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that he has been given pleading instructions, advised as to the necessary form of a proper

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pleading, and received repeated extensions of time totaling over three months, Plaintiff has

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failed to comply with the Court order that he file a proper pleading in this action. He does

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not identify any impediment that would prevent him from complying. The assertions in his

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letter do not suggest a factual basis for any potentially cognizable claim against any

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named defendant. His argument for appointment of counsel has been evaluated and

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denied. (ECF No. 20.) His motion for injunctive relief has been denied. (ECF No. 44.) He

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has provided nothing to the Court that might be said to militate against dismissal.

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IV.

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LEGAL CONCLUSIONS AND RECOMMENDATIONS
Plaintiff has not shown good cause in avoidance of dismissal and has not filed a civil

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rights complaint as ordered. The undersigned recommends that the action be

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DISMISSSED WITHOUT PREJUDICE with any and all pending motions terminated and the

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case closed.

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These findings and recommendations will be 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)(l). Within

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fourteen (14) days after being served with these findings and recommendations, the parties

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may file written objections with the Court. The document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendations.” A party may respond to another

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party’s objections by filing a response within fourteen (14) days after being served with a

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copy of that party’s 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).
IT IS SO ORDERED.

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Dated:

January 23, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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