Carter v. Davey, et al.

Filing 19

FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed for Failure to Obey Court Orders and Failure to State a Claim, with Prejudice; Objections, if any, Due within Fourteen (14) Days signed by Magistrate Judge Gary S. Austin on 11/17/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 12/4/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCUS CARTER,
Plaintiff,

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v.

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1:16-cv-00365-DAD-GSA-PC

DAVEY, et al.,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED FOR FAILURE TO OBEY COURT
ORDERS AND FAILURE TO STATE A CLAIM,
WITH PREJUDICE
(ECF No. 16, 17.)

Defendants.

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OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS

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I.

BACKGROUND

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Marcus Carter (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on March 8, 2016, at the U.S. District Court for the Eastern District of

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California, Sacramento Division. (ECF No. 1.) On March 16, 2016, the case was transferred to

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the Fresno Division. (ECF No. 4.)

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On June 8, 2016, the court screened the Complaint and issued an order requiring

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Plaintiff to either file an amended complaint or notify the court that he was willing to proceed

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only with the claims found cognizable by the court, within thirty days. (ECF No. 9.) The
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thirty-day deadline passed and Plaintiff failed to comply with the court’s order. On July 25,

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2016, the court issued an order to show cause, requiring Plaintiff to file a response within thirty

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days, showing cause why this case should not be dismissed for Plaintiff’s failure to respond to

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the screening order. (ECF No. 10.) On August 25, 2016, Plaintiff filed a response in which he

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notified the court that he tried to file his amended complaint, but it was returned to him by the

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Clerk’s Office with instructions to use the e-filing system. (ECF No. 11.) Plaintiff then tried to

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do so, but the prison librarian inadvertently filed the document in the Sacramento division of

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the Eastern District. (Id.) On August 29, 2016, the court discharged the order to show cause

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and granted Plaintiff thirty days in which to file the amended complaint. (ECF No. 12.) On

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September 9, 2016, Plaintiff filed the First Amended Complaint. (ECF No. 14.)

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On August 28, 2017, the court screened the First Amended Complaint and issued an

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order dismissing the First Amended Complaint for failure to state a claim, with leave to file a

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Second Amended Complaint within thirty days. (ECF No. 16.) The thirty-day deadline passed

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and Plaintiff failed to comply with the court’s order. On October 18, 2017, the court issued an

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order to show cause, requiring Plaintiff to file a response within fourteen days, showing cause

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why this case should not be dismissed for his failure to comply with the August 28, 2017,

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screening order. (ECF No. 17.) The fourteen-day deadline has passed, and Plaintiff has not

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filed any response to the order to show cause.

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II.

DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER

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In determining whether to dismiss this action for failure to comply with the directives

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set forth in its order, “the Court must weigh the following factors: (1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’”

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id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the

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action has been pending since March 8, 2016. Plaintiff’s failure to comply with the court’s
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orders may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court

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cannot continue to expend its scarce resources assisting a litigant who will not comply with

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court orders. Thus, both the first and second factors weigh in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently

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increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and

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it is Plaintiff's failure to file a Second Amended Complaint that is causing delay. Therefore, the

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third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the court which would constitute a satisfactory lesser sanction while protecting the

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court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a

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prisoner proceeding pro se and in forma pauperis, the court finds monetary sanctions of little

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use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is

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not available. The dismissal being considered in this case is with prejudice, which is the

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harshest possible sanction. However, the court finds this sanction appropriate in light of the fact

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that Plaintiff’s failure to file a Second Amended Complaint has resulted in no pleading on file

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which sets forth any claims upon which relief may be granted. Moreover, Plaintiff was

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forewarned in the court’s screening order of October 28, 2017, that his failure to comply with

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the order would result in dismissal of this case for failure to state a claim.

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Finally, because public policy favors disposition on the merits, this factor will always

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weigh against dismissal. Id. at 643.

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III.

CONCLUSION AND RECOMMENDATIONS

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Based on the foregoing, the court HEREBY RECOMMENDS that this case be

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dismissed, with prejudice, based on Plaintiff’s failure to obey the court’s orders of August 28,

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2017, and October 18, 2017, and failure to state a claim.

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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 Title 28 U.S.C. § 636(b)(l).

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fourteen (14) days from the date of service of these findings and recommendations, Plaintiff
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Within

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may file written objections with the court. Such a document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

November 17, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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