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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN GREGORY STUHAAN,
Plaintiff,

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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.

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FOURTEEN-DAY DEADLINE

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I.

Background

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Plaintiff John Gregory Stuhaan, proceeding with counsel, filed the instant civil rights

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action on June 22, 2016. (Doc. 1.) On June 23, 2016, summonses and civil new case documents

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were issued, and the Court set an initial scheduling conference for September 29, 2016. (Docs. 4,

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5, 6.) Due to the press of business, the Court continued the initial scheduling conference to

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October 5, 2016. (Doc. 7.)

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Plaintiff failed to appear at the initial scheduling conference. (Doc. 8.) Therefore, the

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Court issued an order for Plaintiff’s counsel to show cause why sanctions should not be imposed

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for the failure to appear at the mandatory scheduling conference, along with the failure to

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effectuate service. (Doc. 9.)

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On October 17, 2016, Plaintiff’s counsel responded to the Court’s order, explaining that
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he did not appear at the scheduling conference or effectuate service because (1) there is a related

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criminal matter pending in Tulare County, and (2) counsel has been diagnosed with cancer, and

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his treatment has been aggressive and all encompassing. Counsel further indicated that he is a

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solo practitioner and has sought the assistance of two other attorneys for help with the criminal

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and civil actions. Plaintiff therefore requested a 90 to 120-day stay of this action. (Doc. 10.)

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On October 19, 2016, based on counsel’s response, the Court discharged the order to show

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cause, granted a 120-day stay of this action, and directed Plaintiff to file a written status report

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detailing the status of this action and the related criminal matter no later than February 1, 2017.

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(Doc. 11.) No status report was filed.

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On April 6, 2017, the Court issued an order directing Plaintiff to file a written status report

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detailing the status of this action and the related criminal matter within seven (7) days. Plaintiff

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was warned that if he failed to comply with the order, the action may be dismissed without further

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notice based on the failure to comply and the failure to prosecute this action. (Doc. 12.) To date,

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Plaintiff has not filed a status report or otherwise responded to the Court’s order.

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II.

Discussion

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power, they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for

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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack
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of prosecution and failure to comply with local rules). In determining whether to dismiss an

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action for lack of prosecution, failure to obey a court order, or failure to comply with local rules,

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the court must consider several factors: (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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the public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at

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130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.

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In the instant case, the Court finds that the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal because

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there is no indication that Plaintiff intends to prosecute this action. The initial 120-day stay has

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expired, and Plaintiff has failed to apprise this Court of the status of the related criminal matter

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and has not otherwise contacted the Court. Although the Court recognizes the difficulties posed

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by counsel’s health, this action cannot remain idle on the Court’s docket indefinitely. Other

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attorney’s referenced by counsel could have provided a status to the Court. The third factor, risk

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of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury

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arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d

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522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their

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merits, is greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a

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party that his failure to obey the court’s order will result in dismissal satisfies the “consideration

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of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779

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F.2d at 1424. The Court’s order directing Plaintiff to file a status report was clear that if Plaintiff

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failed to comply, this action may be dismissed based on Plaintiff’s failure to comply with court

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orders and failure to prosecute this action. (Doc 12.) Further, evidentiary or other sanctions are

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of little value given Plaintiff’s wholesale failure to contact this Court or respond in compliance

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with the Court’s orders.

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III.

Conclusion and Recommendation

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Based on the above, IT IS HEREBY RECOMMENDED that this action be

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DISMISSED based on Plaintiff’s failure to obey a court order and failure to prosecute this action.
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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court.

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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 the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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

The document should be captioned “Objections to

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 18, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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