Freibaum v. Holland, et al.

Filing 47

ORDER directing Clerk of Court to randomly assign District Judge to action. FINDINGS and RECOMMENDATIONS to dismiss action, with prejudice, for failure to obey court orders and failure to prosecute 39 , 45 signed by Magistrate Judge Barbara A. McAuliffe on 12/8/2017. The case is assigned to and referred to District Judge Anthony W. Ishii. The new case number is 1:14-cv-01832-AWI-BAM-(PC). Objections to F&R's due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALAN FREIBAUM,

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Plaintiff,
v.
K. HOLLAND, et al.,
Defendants.

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ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION, WITH PREJUDICE, FOR
FAILURE TO OBEY COURT ORDERS AND
FAILURE TO PROSECUTE
(ECF Nos. 39, 45)

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FOURTEEN (14) DAY DEADLINE

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Case No. 1:14-cv-01832-BAM (PC)

Plaintiff Alan Freibuam (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action. Plaintiff and Defendant Justice have consented to magistrate

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judge jurisdiction. (ECF Nos. 7, 46.)

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On September 19, 2017, the Court issued an order granting in part and denying in part

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Plaintiff’s motion to name defendants John Doe #1 and John Doe #2. (ECF No. 39.) Plaintiff

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was directed to file a third amended complaint identifying Defendant John Doe #1 as L. Briones

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within thirty (30) days. The Court expressly warned Plaintiff that the failure to file an amended

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complaint in compliance with the Court’s order would result in this action being dismissed for

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failure to obey a court order. (Id. at 6.) Plaintiff failed to file an amended complaint or otherwise

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respond to the Court’s order.
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On October 30, 2017, the Court issued an order directing Plaintiff to show cause in

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writing within twenty (20) days why this action should not be dismissed for failure to comply

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with the Court’s September 19, 2017 order and failure to prosecute. (ECF No. 45.) The Court

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expressly warned Plaintiff that the failure to comply with the order would result in the dismissal

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of this action for failure to obey a court order and failure to prosecute. (Id. at 2.)

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The deadline for Plaintiff’s response to the order to show cause has expired, and Plaintiff
has not complied with or otherwise responded to the Court’s orders.

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I.

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. Hous. 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 Serv., 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:

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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

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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, Plaintiff’s third amended complaint is overdue. Despite multiple attempts to

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communicate with Plaintiff, he has been non-responsive to the Court’s orders. The Court cannot

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effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court finds that both

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the first and second factors weigh in 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 W., 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

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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

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Liability 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 132–33; Henderson, 779 F.2d at 1424. The Court’s September 19, 2017 order

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expressly warned Plaintiff that his failure to file an amended complaint would result in dismissal

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of this action for failure to obey a court order. (ECF No. 39 at 6.) Plaintiff also was warned of the

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potential for dismissal by the Court’s October 30, 2017 order to show cause. (ECF No. 45 at 2.)

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Thus, Plaintiff had adequate warning that dismissal 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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II.

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Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a

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Conclusion and Recommendation

district judge to this action.

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Further, the Court finds that dismissal is the appropriate sanction and HEREBY

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RECOMMENDS that this action be dismissed, with prejudice, for failure to obey court orders

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and failure to prosecute.

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These Findings and Recommendation will be submitted to the United States District Judge
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these Findings and Recommendation, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” The parties are advised that failure to file objections

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within the specified time may result in the waiver of the “right to challenge the magistrate’s

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factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 8, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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