Murray v. McKay, et al.

Filing 16

ORDER VACATING DISMISSAL and FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Obey a Court Order, Failure to Prosecute, and Failure to State a Claim; Clerk to Re-Open Case signed by Magistrate Judge Michael J. Seng on 11/13/2017. referred to Judge Anthony W. Ishii. Objections to F&R due by 11/30/2017. (Sant Agata, S)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 WESLEY THOMAS MURRAY, Plaintiff, 11 12 13 v. Case No. 1:17-cv-0564-MJS (PC) ORDER VACATING DISMISSAL AND MARSHA MCKAY, et al., Defendants. 14 15 FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO OBEY A COURT ORDER, FAILURE TO PROSECUTE, AND FAILURE TO STATE A CLAIM CLERK TO REOPEN CASE 16 17 Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate Judge 19 jurisdiction. (ECF No. 10.) 20 On August 21, 2017, the Court screened Plaintiff’s complaint and dismissed it with 21 leave to amend within thirty days. (ECF No. 11.) To date, Plaintiff has not filed an amended 22 complaint, a notice of voluntary dismissal, or a request for additional time. Plaintiff was 23 advised that failure to file an amended complaint would result in dismissal of Plaintiff’s 24 case. (Id.) 25 Accordingly, on September 28, 2017, the Court issued an Order for Plaintiff to show 26 cause within fourteen days why his action should not be dismissed for failure to obey a 27 Court order. (ECF No. 12.) Over fourteen days passed and Plaintiff again failed to comply 28 with or otherwise respond to the Court’s order. 1 1 On November 7, 2017, the undersigned issued an Order dismissing this action for 2 failure to obey a Court order. (ECF No. 13.) Judgment was entered in favor of Defendants 3 and the case was closed. (ECF No. 14.) 4 I. 5 Vacate Dismissal and Reopen Case On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 6 636(c)(1) requires the consent of all plaintiffs and defendants named in the complaint, even 7 those not served with process, before jurisdiction may vest in a Magistrate Judge to 8 dispose of a civil case.. King v. Williams, --- F.3d ----, No. 15-15259, 2017 WL 5180205 9 (9th Cir. Nov. 9, 2017). Accordingly, the Court held that a Magistrate Judge does not have 10 jurisdiction to dismiss a case with prejudice during screening even if the plaintiff has 11 consented to Magistrate Judge jurisdiction. Id. 12 Here, Defendants were never served and have therefore not consented to 13 Magistrate Judge jurisdiction. Pursuant to King, the undersigned lacked jurisdiction to 14 dismiss Plaintiff’s claims with prejudice during screening. 15 entered Order of dismissal (ECF No. 13) must be, and hereby is, vacated. The Clerk of 16 Court is directed to reopen this case and to assign a District Judge to this action. 17 II. Accordingly, the previously- Findings and Recommendations to Dismiss 18 District courts have the inherent power to control their dockets and “in the exercise 19 of that power, they may impose sanctions including, where appropriate . . . dismissal of a 20 case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss 21 an action based on a party’s failure to prosecute, failure to obey a court order, or failure to 22 comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) 23 (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 24 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a 25 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 26 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone 27 v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 28 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal 2 1 for lack of prosecution and failure to comply with local rules). 2 In determining whether to dismiss an action for lack of prosecution, failure to obey a 3 court order, or failure to comply with local rules, the Court must consider several factors: (1) 4 the public’s interest in expeditious resolution of litigation, (2) the Court’s need to manage its 5 docket, (3) the risk of prejudice to the defendants, (4) the public policy favoring disposition 6 of cases on their merits, and (5) the availability of less drastic alternatives. Thompson, 782 7 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 8 1260-61; Ghazali, 46 F.3d at 53. 9 In the instant case, the public’s interest in expeditiously resolving this litigation and 10 the Court’s interest in managing its docket weigh in favor of dismissal. The third factor, risk 11 of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury 12 arises from the occurrence of unreasonable delay in prosecuting this action. Anderson v. 13 Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring 14 disposition of cases on their merits – is greatly outweighed by the factors in favor of 15 dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this stage 16 in the proceedings there is little available which would constitute a satisfactory lesser 17 sanction while preserving scarce Court resources. Plaintiff proceeds in forma pauperis and 18 is therefore most likely indigent, making monetary sanctions of little use. 19 20 Accordingly, this case should be dismissed. III. Conclusion 21 Based on the foregoing, IT IS HEREBY ORDERED THAT: 22 1. The Court’s previously-entered Order of dismissal (ECF No. 13) is VACATED; 2. The Clerk of Court is directed to REOPEN this case and randomly assign a 23 24 25 and District Judge to this action. 26 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 27 DISMISSED, with prejudice, for failure to state a claim, failure to obey a court order, and 28 failure to prosecute. 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, the 4 parties may file written objections with the Court. The document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” 6 advised that failure to file objections within the specified time may result in the waiver of 7 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 8 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). The parties are 9 10 11 12 IT IS SO ORDERED. Dated: November 13, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?