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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS CARTER, Plaintiff, 12 v. 13 14 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. 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 16 17 18 19 20 I. BACKGROUND 21 Marcus Carter (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 23 commencing this action on March 8, 2016, at the U.S. District Court for the Eastern District of 24 California, Sacramento Division. (ECF No. 1.) On March 16, 2016, the case was transferred to 25 the Fresno Division. (ECF No. 4.) 26 On June 8, 2016, the court screened the Complaint and issued an order requiring 27 Plaintiff to either file an amended complaint or notify the court that he was willing to proceed 28 only with the claims found cognizable by the court, within thirty days. (ECF No. 9.) The 1 1 thirty-day deadline passed and Plaintiff failed to comply with the court’s order. On July 25, 2 2016, the court issued an order to show cause, requiring Plaintiff to file a response within thirty 3 days, showing cause why this case should not be dismissed for Plaintiff’s failure to respond to 4 the screening order. (ECF No. 10.) On August 25, 2016, Plaintiff filed a response in which he 5 notified the court that he tried to file his amended complaint, but it was returned to him by the 6 Clerk’s Office with instructions to use the e-filing system. (ECF No. 11.) Plaintiff then tried to 7 do so, but the prison librarian inadvertently filed the document in the Sacramento division of 8 the Eastern District. (Id.) On August 29, 2016, the court discharged the order to show cause 9 and granted Plaintiff thirty days in which to file the amended complaint. (ECF No. 12.) On 10 September 9, 2016, Plaintiff filed the First Amended Complaint. (ECF No. 14.) 11 On August 28, 2017, the court screened the First Amended Complaint and issued an 12 order dismissing the First Amended Complaint for failure to state a claim, with leave to file a 13 Second Amended Complaint within thirty days. (ECF No. 16.) The thirty-day deadline passed 14 and Plaintiff failed to comply with the court’s order. On October 18, 2017, the court issued an 15 order to show cause, requiring Plaintiff to file a response within fourteen days, showing cause 16 why this case should not be dismissed for his failure to comply with the August 28, 2017, 17 screening order. (ECF No. 17.) The fourteen-day deadline has passed, and Plaintiff has not 18 filed any response to the order to show cause. 19 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER 20 In determining whether to dismiss this action for failure to comply with the directives 21 set forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 22 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 23 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 24 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 25 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 26 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 27 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 28 action has been pending since March 8, 2016. Plaintiff’s failure to comply with the court’s 2 1 orders may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court 2 cannot continue to expend its scarce resources assisting a litigant who will not comply with 3 court orders. Thus, both the first and second factors weigh in favor of dismissal. 4 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 5 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 6 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and 7 it is Plaintiff's failure to file a Second Amended Complaint that is causing delay. Therefore, the 8 third factor weighs in favor of dismissal. 9 As for the availability of lesser sanctions, at this stage in the proceedings there is little 10 available to the court which would constitute a satisfactory lesser sanction while protecting the 11 court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 12 prisoner proceeding pro se and in forma pauperis, the court finds monetary sanctions of little 13 use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is 14 not available. The dismissal being considered in this case is with prejudice, which is the 15 harshest possible sanction. However, the court finds this sanction appropriate in light of the fact 16 that Plaintiff’s failure to file a Second Amended Complaint has resulted in no pleading on file 17 which sets forth any claims upon which relief may be granted. Moreover, Plaintiff was 18 forewarned in the court’s screening order of October 28, 2017, that his failure to comply with 19 the order would result in dismissal of this case for failure to state a claim. 20 Finally, because public policy favors disposition on the merits, this factor will always 21 weigh against dismissal. Id. at 643. 22 III. CONCLUSION AND RECOMMENDATIONS 23 Based on the foregoing, the court HEREBY RECOMMENDS that this case be 24 dismissed, with prejudice, based on Plaintiff’s failure to obey the court’s orders of August 28, 25 2017, and October 18, 2017, and failure to state a claim. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 28 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 3 Within 1 may file written objections with the court. Such a document should be captioned “Objections 2 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 3 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 4 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 5 (9th Cir. 1991)). 6 7 8 9 IT IS SO ORDERED. Dated: November 17, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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