Harris v. German et al

Filing 131

ORDER ADOPTING 128 Amended Findings and Recommendations in Full and DISMISSING the Case, Without Prejudice, signed by District Judge Ana de Alba on 1/25/2023. CASE CLOSED. (Rivera, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEVONTE B. HARRIS,

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Plaintiff,

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v.

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GERMAN, et al.,

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No. 1:15-CV-01462-ADA-GSA (PC)
ORDER ADOPTING AMENDED FINDINGS
AND RECOMMENDATIONS IN FULL AND
DISMISSING THE CASE, WITHOUT
PREJUDICE
(ECF No. 128)

Defendants.

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Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On November 28, 2022, the assigned Magistrate Judge issued an amended findings and

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recommendations, recommending that this case be dismissed, without prejudice, based on

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Plaintiff’s falsehood. (ECF No. 128.) On December 12, 2002, Plaintiff filed objections to the

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amended findings and recommendations. (ECF No. 129.) On December 21, 2022, Defendants

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filed a response to the objections. (ECF No. 130.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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including Plaintiff’s objections and Defendants’ response to the objections, the Court finds the

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amended findings and recommendations to be supported by the record and proper analysis.
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In his objections, Plaintiff argues that “the Ninth Circuit generally exercises a policy of

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restraint in imposing sanctions” in contrast to the Eleventh Circuit. (ECF No. 129 at 6.) Plaintiff

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relies on Lemoge v. United States, 587 F.3d 1188 (9th Cir. 2009), to argue that Plaintiff’s

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falsehoods should be considered excusable neglect to prevent the dismissal of his action.

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“Excusable neglect ‘encompass[es] situations in which the failure to comply with a filing

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deadline is attributable to negligence,’ and includes ‘omissions caused by carelessness.’”

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Lemoge, 587 F.3d at 1192 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S.

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380, 394 (1993)). The Court finds that Plaintiff’s falsehoods are neither attributable to negligence

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nor caused by carelessness. Rather, Plaintiff deliberately presented a falsehood to the Court.

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Therefore, the Court does not find that Plaintiff’s falsehood constitutes excusable neglect to

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prevent the dismissal of this action.
Plaintiff further argues that “[t]he harsh remedy of dismissal should be imposed only in

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‘extreme circumstances.’” (ECF No. 129 at 6.) Plaintiff relies on Hamilton Copper & Steel

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Corp. v. Primary Steel, Inc., 898 F.2d 1428 (9th Cir. 1990) to encourage the Court to consider

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less drastic alternatives other than dismissal. However, the Court orders the dismissal of the case

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without prejudice, not with prejudice as in Hamilton Copper. Dismissal without prejudice is a

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less drastic alternative in comparison to dismissal with prejudice. The issuance of this order is

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warranted because Plaintiff’s circumstances are similar to those addressed in Uribe v. McKesson,

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No. 1:08-CV-01285-SMS PC, 2011 WL 3925077, at *4 (E.D. Cal. Sept. 7, 2011). In Uribe, the

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court found that the plaintiff intentionally misled the court and dismissed the action, with

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prejudice, as a sanction for the plaintiff’s filing of a false declaration in support of his opposition

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to the defendants’ motion for summary judgment. Uribe, 2011 WL 3925077, at *5. The court

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reasoned that despite the plaintiff’s pro se status, filing a false declaration would violate the

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standard for any litigant. Id. at *4. The court further found that the delay in proceedings is due to

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the plaintiff’s conduct. Id. at *5. Here, Plaintiff attempted to intentionally mislead the Court with

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falsehoods, and his falsehoods have caused delay of the case that has been pending since 2015.

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As a result, the Court dismisses the case, without prejudice.

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Accordingly,

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1.

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The amended findings and recommendations issued on November 28, 2022, (ECF No.
128), are ADOPTED IN FULL;

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2.

This case is dismissed, without prejudice, based on Plaintiff’s falsehood; and

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3.

The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

January 25, 2023
UNITED STATES DISTRICT JUDGE

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