Solomon v. Castaneda et al

Filing 43

FINDINGS and RECOMMENDATIONS to Dismiss this 15 Action Consistent with Magistrate Judge's Prior Orders; Objections, if any, Due within Fourteen (14) Days; ORDER DIRECTING the Clerk of Court to Assign the Case to a District Judge signed by Magistrate Judge Jeremy D. Peterson on 7/26/2018. Referred to Judge Dale A. Drozd. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT SOLOMON, 12 13 14 15 16 17 18 19 Plaintiff, v. I. CASTANEDA, et al., Defendants. Case No. 1:15-cv-01801-JDP FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION CONSISTENT WITH MAGISTRATE JUDGE’S PRIOR ORDERS OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS ORDER DIRECTING THE CLERK OF COURT TO ASSIGN THE CASE TO A DISTRICT JUDGE Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 20 action brought under 42 U.S.C. § 1983. On June 28, 2017, the court dismissed this case for 21 failure to obey a court order and failure to prosecute. (Doc. No. 29.) Plaintiff appealed this 22 decision. (Doc. Nos. 32, 33.) The Ninth Circuit vacated and remanded (Doc. No. 41), relying on 23 Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017) (all parties, including unserved 24 defendants, must consent in order for jurisdiction to vest with the magistrate judge under 28 25 U.S.C. § 636(c)(1)). In accordance with the Ninth Circuit’s decision, the undersigned will 26 recommend that the district judge presiding over this matter dismiss this action on the same 27 grounds as previously asserted: failure to obey a court order and failure to prosecute. 28 1 I. Background 2 Plaintiff initiated this action on November 30, 2015. (Doc. No. 1.) On August 8, 2016, a 3 district judge screened plaintiff’s amended complaint and concluded that it stated cognizable 4 Eighth Amendment excessive force claims against defendants Castaneda, Press, and Sanchez. 5 Plaintiff’s other claims were dismissed for failure to state a cognizable claim—some with leave to 6 amend and some without leave to amend. The court also dismissed some defendants without 7 leave to amend. (Doc. No. 16.) The complaint itself was dismissed and plaintiff was granted 8 thirty (30) days to file a second amended complaint. (Id.) 9 Plaintiff requested four extensions of time to file a second amended complaint. (Doc. 10 Nos. 17, 19, 21, 24.) The motions were granted, but in granting the fourth motion, filed January 11 30, 2017 (Doc. No. 24), the court warned plaintiff that the court was unlikely to grant further 12 extensions of time. (Doc. No. 25.) Plaintiff was ordered to file an amended complaint but also 13 was given the option of notifying the court of his willingness to proceed only on the claims found 14 cognizable. (Id.) 15 Plaintiff failed to timely file a second amended complaint, notify the court of his 16 willingness to proceed only on the cognizable claims, or otherwise respond to the court’s order. 17 (Id.) Accordingly, on April 20, 2017, the court issued an order to show cause for failure to obey a 18 court order and failure to prosecute. (Doc. No. 26.) Plaintiff then filed a fifth motion for 19 extension of time on May 11, 2017. (Doc. No. 27.) The court denied the motion and ordered 20 plaintiff, within twenty-one (21) days, either to file an amended complaint or to advise the court 21 that he wished to proceed on the excessive force claim found cognizable. (Doc. No. 28.) The 22 court advised plaintiff that failure to timely respond would result in dismissal of the action for 23 failure to obey a court order and failure to prosecute. (Id.) The twenty-one-day deadline passed 24 without plaintiff filing an amended complaint, stating his willingness to proceed only on 25 cognizable claims, or otherwise responding to the court’s order. 26 II. 27 Local Rule 110 provides that “failure of counsel or of a party to comply with these Rules 28 Legal Standard or with any order of the Court may be grounds for imposition by the Court of any and all 2 1 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 2 control their dockets and, “in the exercise of that power, may impose sanctions including, where 3 appropriate, default or dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 4 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute, 5 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 6 F.3d 52, 53-54 (9th Cir. 1995) (dismissing for noncompliance with local rule); Ferdik v. Bonzelet, 7 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissing for failure to comply with an order requiring 8 amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissing 9 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 10 Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissing for failure to comply 11 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissing for 12 lack of prosecution and failure to comply with local rules). 13 In determining whether to dismiss an action for lack of prosecution, failure to obey a court 14 order, or failure to comply with local rules, the court must consider several factors: (1) the 15 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 16 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 17 their merits; and (5) the availability of less drastic alternatives. See Ghazali, 46 F.3d at 53; 18 Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; Henderson, 779 F.2d at 1423-24; 19 Thompson, 782 F.2d at 831. 20 III. Analysis 21 The factors guiding the court favor dismissal. The public’s interest in expeditiously 22 resolving this litigation and the court’s interest in managing its docket are both served by 23 dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, 24 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting this 25 action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—the 26 public policy favoring disposition of cases on their merits—is outweighed by the factors in favor 27 of dismissal. With respect to the availability of lesser sanctions, at this stage in the proceedings 28 the court has few viable alternatives to dismissal; plaintiff has not paid the filing fee for this 3 1 action and may be unable to pay, making monetary sanctions of little use. Notably, the order to 2 show cause warned plaintiff that his failure to comply may result in dismissal, with prejudice. 3 (Doc. No. 26.) Thus, plaintiff was on notice that his failure to communicate with the court could 4 result in dismissal of his complaint. 5 Order 6 The clerk of court is directed to assign this case to a district judge who will review the 7 findings and recommendations. 8 Findings and Recommendation 9 The undersigned recommends that the presiding district judge dismiss the case with 10 prejudice for plaintiff’s failure to prosecute and failure to comply with court orders (Doc. Nos. 11 16, 28.). 12 The undersigned submits the findings and recommendations to the district judge under 28 13 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District 14 Court, Eastern District of California. Within 14 days of the service of the findings and 15 recommendations, plaintiff may file written objections to the findings and recommendations with 16 the court and serve a copy on all parties. That document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 18 and recommendations under 28 U.S.C. § 636(b)(1)(C). Plaintiff’s failure to file objections within 19 the specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 20 F.3d 834, 839 (9th Cir. 2014). 21 22 IT IS SO ORDERED. 23 Dated: 24 July 26, 2018 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4

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