Grant v. U.S. Government

Filing 12

ORDER DIRECTING the Clerk to Assign a United States District Judge to the Action; FINDINGS and RECOMMENDATIONS Dismissing the Action for Plaintiff's Failure to Prosecute and Failure to Obey the Court's Order, signed by Magistrate Judge Jennifer L. Thurston on 2/24/15: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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O’DEAN M. GRANT,
Plaintiff,

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v.

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U.S. GOVERNMENT,
Defendant.

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Case No.: 1:14-cv-01618 - --- - JLT
ORDER DIRECTING THE CLERK TO ASSIGN A
UNITED STATES DISTRICT JUDGE TO THE
ACTION
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION FOR PLAINTIFF’S
FAILURE TO PROSECUTE AND FAILURE TO
OBEY THE COURT’S ORDER

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Plaintiff O’Dean Grant initiated this action by filing a complaint against the Government of the

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United States on October 14, 2014. (Doc. 1.) Because Plaintiff has failed to prosecute this action

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following the Ninth Circuit’s rejection of his appeal and failed to comply with the Court’s order to file

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an amended complaint, the Court recommends the action be DISMISSED.

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I.

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Procedural History
The Court screened Plaintiff’s complaint pursuant to 28 U.S.C. §1915(e)(2), and found Plaintiff

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failed to state facts sufficient to support his claims for relief. (Doc 4.) Therefore, the Court dismissed

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the complaint with leave to amend on November 25, 2014. (Id.) Plaintiff was directed to file an

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amended complaint within 21 days of the date of service, or no later than December 16, 2014. (Id. at

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8.) Plaintiff did not file an amended complaint, but rather filed a Notice of Appeal on December 5,

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2014. (Doc. 5.) The Ninth Circuit found it lacked jurisdiction over the appeal, because the order
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challenged by Plaintiff was not final or appealable. (Doc. 8 at 1, citing, e.g., WMX Techs., Inc. v.

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Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (dismissal of complaint with leave to amend is not

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appealable)). Therefore, the Ninth Circuit dismissed Plaintiff’s appeal.

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On January 21, 2015, the Court ordered Plaintiff to show cause why the action should not be

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dismissed or, in the alternative, to file an amended complaint within 21 days of the date of service, or

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no later than February 17, 2015. (Doc. 9.) To date, Plaintiff has failed to respond to the Court’s order.

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II.

Failure to Prosecute and Obey the Court’s Orders
The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a

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party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any

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and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent

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power to control their dockets,” and in exercising that power, a court may impose sanctions including

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dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.

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1986). A court may dismiss an action based upon a party’s failure to obey a court order, failure to

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prosecute an action, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of

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complaint); 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).

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III.

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Discussion and Analysis
To determine whether to dismiss an action for failure to prosecute, failure to obey a court

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order, or failure to comply with the Local Rules, the Court must consider several factors, including:

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“(1) 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 cases

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on their merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see

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also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s

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interest in managing the docket weigh in favor of dismissal. See Yourish v. California Amplifier, 191

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F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always

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favors dismissal”). The risk of prejudice to the defendant also weighs in favor of dismissal, since a
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presumption of injury arises from the occurrence of unreasonable delay in prosecution of an action. See

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Similarly, the Court has an interest in

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managing its docket, given that the Eastern District of California is one of the busiest federal

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jurisdictions in the United States and its District Judges carry the heaviest caseloads in the nation.

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Because Plaintiff has failed to file an amended complaint, despite its necessity for the matter to

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proceed, the Court’s interest in managing its docket weighs in favor of dismissal. See Ferdik, 963 F.2d

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at 1261 (recognizing that district courts have inherent interest in managing their dockets without being

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subject to noncompliant litigants).
In the Order to Show Cause, the Court warned that it “may dismiss an action with prejudice,

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based upon a party’s failure to prosecute an action or failure to obey a court order . . .” (Doc. 9 at 2.)

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Thus, Plaintiff had adequate warning that dismissal would result from noncompliance with the Court’s

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orders, and his failure to prosecute the action. The Court’s warning to Plaintiff that his failure to

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comply with the order would result in dismissal satisfies the requirement that the Court consider less

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drastic measures. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Given these facts, the

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policy favoring disposition of cases on their merits is outweighed by the factors in favor of dismissal.

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IV.

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Order
Good cause appearing IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to

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assign a United States District Judge to this action.

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V.

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Findings and Recommendations
Plaintiff has failed to comply with the Court’s order to file an amended complaint, and has

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failed to prosecute this action since the Ninth Circuit dismissed his appeal. Accordingly, IT IS

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HEREBY RECOMMENDED:

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The action be DISMISSED without prejudice; and

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2.

The Clerk of Court be DIRECTED to close this action.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within fourteen

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days after being served with these findings and recommendations, Plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised failure to file objections within the specified time may waive

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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991);

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Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

February 24, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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