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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WESLEY THOMAS MURRAY,
Plaintiff,

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v.

Case No. 1:17-cv-0564-MJS (PC)
ORDER VACATING DISMISSAL
AND

MARSHA MCKAY, et al.,
Defendants.

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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

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Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights

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action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate Judge

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jurisdiction. (ECF No. 10.)

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On August 21, 2017, the Court screened Plaintiff’s complaint and dismissed it with

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leave to amend within thirty days. (ECF No. 11.) To date, Plaintiff has not filed an amended

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complaint, a notice of voluntary dismissal, or a request for additional time. Plaintiff was

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advised that failure to file an amended complaint would result in dismissal of Plaintiff’s

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case. (Id.)

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Accordingly, on September 28, 2017, the Court issued an Order for Plaintiff to show

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cause within fourteen days why his action should not be dismissed for failure to obey a

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Court order. (ECF No. 12.) Over fourteen days passed and Plaintiff again failed to comply

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with or otherwise respond to the Court’s order.
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On November 7, 2017, the undersigned issued an Order dismissing this action for

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failure to obey a Court order. (ECF No. 13.) Judgment was entered in favor of Defendants

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and the case was closed. (ECF No. 14.)

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I.

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Vacate Dismissal and Reopen Case
On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. §

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636(c)(1) requires the consent of all plaintiffs and defendants named in the complaint, even

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those not served with process, before jurisdiction may vest in a Magistrate Judge to

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dispose of a civil case.. King v. Williams, --- F.3d ----, No. 15-15259, 2017 WL 5180205

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(9th Cir. Nov. 9, 2017). Accordingly, the Court held that a Magistrate Judge does not have

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jurisdiction to dismiss a case with prejudice during screening even if the plaintiff has

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consented to Magistrate Judge jurisdiction. Id.

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Here, Defendants were never served and have therefore not consented to

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Magistrate Judge jurisdiction. Pursuant to King, the undersigned lacked jurisdiction to

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dismiss Plaintiff’s claims with prejudice during screening.

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entered Order of dismissal (ECF No. 13) must be, and hereby is, vacated. The Clerk of

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Court is directed to reopen this case and to assign a District Judge to this action.

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II.

Accordingly, the previously-

Findings and Recommendations to Dismiss

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District courts have the inherent power to control their dockets and “in the exercise

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of that power, they may impose sanctions including, where appropriate . . . dismissal of a

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case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss

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an action based on a party’s failure to prosecute, failure to obey a court order, or failure to

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comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61

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(9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a

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

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

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

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

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In determining whether to dismiss an action for lack of prosecution, failure to obey a

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court order, or failure to comply with local rules, the Court must consider several factors: (1)

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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

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of cases on their merits, and (5) the availability of less drastic alternatives. Thompson, 782

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F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at

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1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the public’s interest in expeditiously resolving this litigation and

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the Court’s interest in managing its docket weigh in favor of dismissal. The third factor, risk

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of prejudice to Defendants, also weighs in favor of dismissal, since a presumption of injury

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arises from the occurrence of unreasonable delay in prosecuting this action. Anderson v.

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Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring

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disposition of cases on their merits – is greatly outweighed by the factors in favor of

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dismissal discussed herein. Finally, as for the availability of lesser sanctions, at this stage

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in the proceedings there is little available which would constitute a satisfactory lesser

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sanction while preserving scarce Court resources. Plaintiff proceeds in forma pauperis and

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is therefore most likely indigent, making monetary sanctions of little use.

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Accordingly, this case should be dismissed.
III.

Conclusion

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Based on the foregoing, IT IS HEREBY ORDERED THAT:

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The Court’s previously-entered Order of dismissal (ECF No. 13) is VACATED;

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The Clerk of Court is directed to REOPEN this case and randomly assign a

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and

District Judge to this action.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be

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DISMISSED, with prejudice, for failure to state a claim, failure to obey a court order, and

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failure to prosecute.
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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, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.”

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advised that failure to file objections within the specified time may result in the waiver of

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rights 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)).

The parties are

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IT IS SO ORDERED.
Dated:

November 13, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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