Sanchez v. Kramer et al

Filing 14

FINDINGS and RECOMMENDATIONS recommending dismissal of action, with prejudice, for failure to state a claim, failure to comply with a court order, and failure to prosecute 11 , 12 , 13 signed by Magistrate Judge Stanley A. Boone on 12/27/2018. Referred to Judge Dale A. Drozd; Objections to F&R's due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE SANCHEZ,

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Plaintiff,
v.
NORM KRAMER, et al.,
Defendants.

No. 1:15-cv-01868-DAD-SAB
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM, FAILURE TO COMPLY
WITH A COURT ORDER, AND FAILURE TO
PROSECUTE
[ECF Nos. 11, 12, 13]

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FOURTEEN-DAY DEADLINE
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I.

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INTRODUCTION

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Plaintiff Jesse Sanchez is a civil detainee appearing pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This 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 May 20, 2016, the undersigned screened Plaintiff’s amended complaint and issued

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findings and recommendations recommending that this action be dismissed for the failure to state

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a cognizable claim. (ECF No. 9.) On September 20, 2018, the District Judge declined to adopt

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the findings and recommendations, and granted Plaintiff leave to file a second amended

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complaint. (ECF No. 11.) However, no deadline was set for Plaintiff’s compliance with that

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order. (Id.) Therefore, on September 21, 2018, the Court ordered Plaintiff to file his second

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amended complaint no later than October 24, 2018. (Doc. No. 12.)
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Plaintiff did not file any second amended complaint in compliance with the Court’s

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orders, nor otherwise communicated with the Court. Therefore, on October 31, 2018, the Court

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issued an order to show cause why this case should not be dismissed for the failure to state a

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claim for relief, the failure to comply with a court order, and the failure to prosecute this action.

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(ECF No. 13.) Plaintiff was granted fourteen days to respond to the order to show cause.

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That deadline for Plaintiff to respond to the order to show case has passed, and Plaintiff

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has not responded. Accordingly, the Court recommends dismissal of this action for the reasons

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discussed below.

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II.

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FAILURE TO STATE A CLAIM

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that

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“seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate

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that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d

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1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss
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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant

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has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s

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liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d

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at 969.

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Here, this case does not proceed upon any complaint with a cognizable claim.

As

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discussed by the District Judge, Plaintiff originally filed a complaint with allegations that the

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undersigned found insufficient to state a cognizable claim, asserting exposure to Valley Fever.

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(ECF No. 1.) The undersigned granted leave to amend. (ECF No. 5.)

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In response, Plaintiff filed a first amended complaint that was, in effect, a series of

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objections and arguments in response to the prior screening order. (ECF No. 8.) The undersigned

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then issued findings and recommendations to dismiss, (ECF No. 9), and the District Judge

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declined to adopt those findings and recommendations, (ECF No. 11). However, the District

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Judge found that the first amended complaint must be dismissed for its failure to state a

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cognizable claim, because the first amended complaint did not contain the factual allegations

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sufficient to proceed upon and serve upon the defendants. (Id.) Leave to amend was granted so

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that Plaintiff could plead sufficient factual allegations in a single, operative complaint, as

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required. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part by

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Lacey v. Maricopa County, 693 F.3d 896, 925–28 (9th Cir. 2012) (an amended complaint

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supersedes any prior complaint).

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“complete in and of itself without reference to the prior or superseded pleading”). As noted

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above, Plaintiff has not done so despite repeated orders from the Court.

See also Local Rule 220 (amended complaint must be

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Therefore, currently there is no operative complaint in this case, and this case does not

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proceed upon any cognizable claim. Thus, this matter must be dismissed, with prejudice, for the

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failure to state a claim upon which relief may be granted.

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III.

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FAILURE TO OBEY COURT ORDERS

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As noted above, on October 31, 2018, the Court issued an order to show cause in writing

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why this action should not be dismissed for Plaintiff’s failure to comply with or otherwise
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respond to the Court’s September 21, 2018 order. (ECF No. 13.) Plaintiff was also informed that

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he could comply with the order to show cause by filing a second amended complaint. (Id. at 2.)

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Plaintiff was permitted another fourteen days to respond to the order to show cause, but did not

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file any second amended complaint or otherwise respond.

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This action can proceed no further without Plaintiff’s cooperation and compliance with

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the orders at issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted.

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Id. The Court has the inherent power to control its docket and may, in the exercise of that power,

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impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles

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Cnty., 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action, the Court

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must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re

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Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (internal

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quotations and citations omitted). These factors guide a court in deciding what to do, and are not

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conditions that must be met in order for a court to take action. Id. (citation omitted).

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Based on Plaintiff’s failure to comply with or otherwise respond to multiple court orders,

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the Court is left with no alternative but to recommendation dismissal of the action for failure to

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prosecute. Plaintiff has had no contact with the Court in six months, and repeated attempts to

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engage him in the litigation have gone unanswered, affecting the use of the Court’s resources and

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management of its docket. There is no pleading on file in this action which sets forth any claims

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upon which relief may be granted. Plaintiff has been repeatedly warned of dismissal, to no avail,

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and as Plaintiff is proceeding in forma pauperis and has ceased litigating this action, no lesser

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sanctions are available.

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IV.

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CONCLUSION

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Accordingly, it is HEREBY RECOMMENDED that the instant action be dismissed, with

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prejudice, for Plaintiff’s failure to comply with a court order, failure to prosecute, and for the

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failure state a claim upon which relief may be granted.
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This Findings and Recommendation will be submitted to the United States District Judge

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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 this Findings and Recommendation, Plaintiff may file written

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

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Findings and Recommendation.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

December 27, 2018
UNITED STATES MAGISTRATE JUDGE

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