Hunt v. Matevousian et al

Filing 22

FINDINGS and RECOMMENDATIONS to Dismiss Action, without Prejudice, for Failure to Obey a Court Order and Failure to Prosecute re 16 , 18 , signed by Magistrate Judge Barbara A. McAuliffe on 1/29/18. Referred to Judge O'Neill. Objections to F&R Due Within 14 Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MAURICE HUNT,

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Plaintiff,

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v.

FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION, WITHOUT PREJUDICE,
FOR FAILURE TO OBEY A COURT ORDER
AND FAILURE TO PROSECUTE

ANDRE MATEVOUSIAN, et al.,
(ECF Nos. 16, 18)

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Defendants.
FOURTEEN (14) DAY DEADLINE

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Case No. 1:16-cv-01560-LJO-BAM (PC)

I.

Background
Plaintiff Maurice Hunt (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

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pauperis under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

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(1971).

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On November 17, 2017, the Court issued a screening order dismissing Plaintiff’s

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complaint and granting leave to amend within thirty days. (ECF No. 16.) The Court found that

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Plaintiff stated a cognizable claim for excessive force against Defendants Helling, Gunn, and

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Graham and a failure to intervene claim against Defendant Hellmuth arising out of allegations

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that Plaintiff was assaulted on August 6, 2015. Plaintiff also stated a cognizable claim for

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excessive force against Defendant Villegas arising out of events on November 26, 2015. Plaintiff

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failed to state any other cognizable claims. Plaintiff was further informed that claims regarding

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the events of August 6, 2015 and claims regarding events of November 26, 2015 were improperly
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joined in this action. (Id.)
On December 14, 2017, Plaintiff filed a motion for clarification of the Court’s screening

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order, requesting that the Court consider the prejudice to Plaintiff by dismissing this action rather

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than severing the improperly joined claims, due to potential statute of limitation issues. (ECF No.

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17.) On December 18, 2017, the Court issued an order, signed December 15, 2017, granting the

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motion. (ECF No. 18.) The order explained that Plaintiff must file a first amended complaint to

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pursue claims in this action, and at that time the Court would conduct the appropriate prejudice

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analysis and address the disposition of any improperly joined claims. The Court extended the

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deadline for Plaintiff to file a first amended complaint until thirty days following service of that

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order. (Id.) The deadline for Plaintiff’s first amended complaint has expired, and Plaintiff has

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failed to file an amended complaint or otherwise comply with the Court’s screening order.

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II.

Jurisdiction

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On January 8, 2018, Plaintiff filed a notice of appeal. The notice of appeal states that

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Plaintiff appeals the Court’s December 15, 2017 and November 17, 2017 orders. As no final

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order has been entered in this action, the Court will treat Plaintiff’s appeal as an interlocutory

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appeal.

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Although there is an interlocutory appeal pending, the Court is not divested of jurisdiction

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to address Plaintiff’s failure to prosecute this action. See United States v. Pitner, 307 F.3d 1178,

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1183 n.5 (9th Cir. 2002) (filing of interlocutory appeal “does not divest the trial court of

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jurisdiction over aspects of the case that are not the subject of the appeal”) (citing Plotkin v. Pac.

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Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982)). The interlocutory appeal apparently

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relates to the Court’s screening order and subsequent clarification order, and therefore does not

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divest the Court of jurisdiction to continue with other phases of the case. Plotkin, 688 F.2d at

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1293. Therefore, Plaintiff remains obligated to comply with this Court’s orders.

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III.

Failure to Prosecute and Failure to Obey a Court Order

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A.

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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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Legal Standard

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. Hous. 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); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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B.

Discussion

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Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the

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Court’s order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his

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case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against

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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d

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639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products

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Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).

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Finally, the Court’s warning to a party that failure to obey the court’s order will result in
dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;
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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s November 17, 2017 screening

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order expressly warned Plaintiff that his failure to file an amended complaint would result in

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dismissal of this action for failure to obey a court order. (ECF No. 16, p. 12.) Thus, Plaintiff had

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adequate warning that dismissal could result from his noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court that

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating his case.

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IV.

Conclusion and Recommendation

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Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY

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RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court

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order and for Plaintiff’s failure to prosecute this action.

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These 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 these 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 the “right to challenge the magistrate’s factual

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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 29, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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