Quair, Sr. v. Vento et al

Filing 34

FINDINGS and RECOMMENDATIONS Recommending Dismisal of this Action, with Prejudice, for Failure to State a Claim, Failure to Obey Court Orders, and Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 02/07/2017. Referred to Judge Ishii; Objections to F&R due by 2/27/2017.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAMMY R. QUAIR, SR.,

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Plaintiff,

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Case No. 1:14-cv-01616-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THIS
ACTION, WITH PREJUDICE, FOR FAILURE
TO STATE A CLAIM, FAILURE TO OBEY
COURT ORDERS, AND FAILURE TO
PROSECUTE

v.
VENTO, et al.,

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Defendants.
(ECF Nos. 32, 33)

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FOURTEEN (14) DAY DEADLINE

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Findings and Recommendations

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I.

Background

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Plaintiff Sammy R. Quair, Sr. (“Plaintiff”) is a former state prisoner proceeding pro se and

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in forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action

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on October 16, 2014. (ECF No. 1.)
On November 16, 2016, the Court issued a screening order dismissing Plaintiff’s first

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amended complaint with leave to amend within thirty (30) days. (ECF No. 32.) The Court

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expressly warned Plaintiff that the failure to comply with the Court’s order would result in this

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action being dismissed for failure to obey a court order and for failure to state a claim. (Id. at 6.)

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Plaintiff failed to file an amended complaint or otherwise respond to the Court’s order.

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On January 4, 2017, the Court issued an order directing Plaintiff to show cause in writing

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within twenty (20) days why this action should not be dismissed for failure to state a claim,

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failure to obey a court order, and failure to prosecute. (ECF No. 33.) The Court expressly warned

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Plaintiff that the failure to comply with that order would result in this action being dismissed,

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with prejudice, for failure to state a claim, failure to obey a court order, and failure to prosecute.

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(Id. at 2.)

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Plaintiff’s response to the order to show cause was due on or before January 27, 2017. As

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of the date of this order, Plaintiff has not complied with or otherwise responded to the order to

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show cause.

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II.

Discussion

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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In determining whether to dismiss an action, 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 of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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Here, the action has been pending for over two years, and Plaintiff’s second amended
complaint is overdue. Despite multiple attempts to communicate with Plaintiff, he has been non2

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responsive to the Court’s orders. The Court cannot effectively manage its docket if Plaintiff

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ceases litigating his case. Thus, the Court finds that both the first and second factors weigh in

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favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against

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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d

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639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility

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it is to move a case toward disposition on the merits but whose conduct impedes progress in that

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direction,” which is the case here. In re Phenylpropanolamine (PPA) Products Liability

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Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).

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Finally, the court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132-133; Henderson, 779 F.2d at 1424. The Court’s November 16, 2016 order

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expressly warned Plaintiff that his failure to file a second amended complaint would result in

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dismissal of this action for failure to state a claim and to obey a court order. (ECF No. 32 at 6).

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Plaintiff also was warned of the potential for dismissal, with prejudice, by the Court’s January 4,

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2017 order to show cause. (ECF No. 33 at 2.) Thus, Plaintiff had adequate warning that dismissal

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could result from his noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court that

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating his case.

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III.

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Accordingly, the Court HEREBY RECOMMENDS that:

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1. This action be DISMISSED, with prejudice, for failure to state a claim under 28

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Conclusion and Recommendations

U.S.C. § 1915A; and
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2. This action be DISMISSED, with prejudice, for failure to obey the Court’s November

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16, 2016 order (ECF No. 32) and January 4, 2017 order (ECF No. 33), and for

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Plaintiff’s failure to prosecute this action.

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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, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after

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being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that the failure to file objections within the specified

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time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 7, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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