Stuhaan v. City of Visalia et al

Filing 13

FINDINGS and RECOMMENDATIONS Regarding Dismissal of this Action for Failure to Obey a Court Order and Failure to Prosecute. (Doc. 12) Referred to Judge Ishii; Objections to F&R - within fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. signed by Magistrate Judge Barbara A. McAuliffe on 4/18/2017. (Herman, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN GREGORY STUHAAN, Plaintiff, 12 13 14 Case No. 1:16-cv-00901-AWI-BAM FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF THIS ACTION FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE v. CITY OF VISALIA, et al., (Doc. 12) Defendants. 15 FOURTEEN-DAY DEADLINE 16 17 18 I. Background 19 Plaintiff John Gregory Stuhaan, proceeding with counsel, filed the instant civil rights 20 action on June 22, 2016. (Doc. 1.) On June 23, 2016, summonses and civil new case documents 21 were issued, and the Court set an initial scheduling conference for September 29, 2016. (Docs. 4, 22 5, 6.) Due to the press of business, the Court continued the initial scheduling conference to 23 October 5, 2016. (Doc. 7.) 24 Plaintiff failed to appear at the initial scheduling conference. (Doc. 8.) Therefore, the 25 Court issued an order for Plaintiff’s counsel to show cause why sanctions should not be imposed 26 for the failure to appear at the mandatory scheduling conference, along with the failure to 27 effectuate service. (Doc. 9.) 28 On October 17, 2016, Plaintiff’s counsel responded to the Court’s order, explaining that 1 1 he did not appear at the scheduling conference or effectuate service because (1) there is a related 2 criminal matter pending in Tulare County, and (2) counsel has been diagnosed with cancer, and 3 his treatment has been aggressive and all encompassing. Counsel further indicated that he is a 4 solo practitioner and has sought the assistance of two other attorneys for help with the criminal 5 and civil actions. Plaintiff therefore requested a 90 to 120-day stay of this action. (Doc. 10.) 6 On October 19, 2016, based on counsel’s response, the Court discharged the order to show 7 cause, granted a 120-day stay of this action, and directed Plaintiff to file a written status report 8 detailing the status of this action and the related criminal matter no later than February 1, 2017. 9 (Doc. 11.) No status report was filed. 10 On April 6, 2017, the Court issued an order directing Plaintiff to file a written status report 11 detailing the status of this action and the related criminal matter within seven (7) days. Plaintiff 12 was warned that if he failed to comply with the order, the action may be dismissed without further 13 notice based on the failure to comply and the failure to prosecute this action. (Doc. 12.) To date, 14 Plaintiff has not filed a status report or otherwise responded to the Court’s order. 15 II. Discussion 16 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 17 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 18 within the inherent power of the Court.” District courts have the inherent power to control their 19 dockets and “[i]n the exercise of that power, they may impose sanctions including, where 20 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 21 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 22 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 23 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 24 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 25 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for 26 failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 27 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 28 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 2 1 of prosecution and failure to comply with local rules). In determining whether to dismiss an 2 action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, 3 the court must consider several factors: (1) the public’s interest in expeditious resolution of 4 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 5 the public policy favoring disposition of cases on their merits; and (5) the availability of less 6 drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 7 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 8 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 9 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because 10 there is no indication that Plaintiff intends to prosecute this action. The initial 120-day stay has 11 expired, and Plaintiff has failed to apprise this Court of the status of the related criminal matter 12 and has not otherwise contacted the Court. Although the Court recognizes the difficulties posed 13 by counsel’s health, this action cannot remain idle on the Court’s docket indefinitely. Other 14 attorney’s referenced by counsel could have provided a status to the Court. The third factor, risk 15 of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury 16 arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 17 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their 18 merits, is greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a 19 party that his failure to obey the court’s order will result in dismissal satisfies the “consideration 20 of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 21 F.2d at 1424. The Court’s order directing Plaintiff to file a status report was clear that if Plaintiff 22 failed to comply, this action may be dismissed based on Plaintiff’s failure to comply with court 23 orders and failure to prosecute this action. (Doc 12.) Further, evidentiary or other sanctions are 24 of little value given Plaintiff’s wholesale failure to contact this Court or respond in compliance 25 with the Court’s orders. 26 III. Conclusion and Recommendation 27 Based on the above, IT IS HEREBY RECOMMENDED that this action be 28 DISMISSED based on Plaintiff’s failure to obey a court order and failure to prosecute this action. 3 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 3 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 4 file written objections with the Court. 5 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 objections within the specified time may result in the waiver of the “right to challenge the 7 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 8 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). The document should be captioned “Objections to 9 10 11 IT IS SO ORDERED. Dated: /s/ Barbara April 18, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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