Thomas v. Lozano et al

Filing 12

FINDINGS and RECOMMENDATIONS recommending that this action be dismissed, without prejudice, for Plaintiff's failure to obey a Court order and for Plaintiff's failure to prosecute this action re 10 Amended Prisoner Civil Rights Complaint filed by Austin Thomas.;referred to Judge Ishii, signed by Magistrate Judge Barbara A. McAuliffe on 5/31/2019. Objections to F&R due 14-Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AUSTIN THOMAS,

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Plaintiff,

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v.
I. LOZANO, et al.,

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Defendants.

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Case No. 1:17-cv-01068-AWI-BAM (PC)
FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL OF ACTION,
WITHOUT PREJUDICE, FOR FAILURE TO
OBEY A COURT ORDER AND FAILURE
TO PROSECUTE
(ECF No. 11)
FOURTEEN (14) DAY DEADLINE

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I.

Background

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Plaintiff Austin Thomas is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On April 8, 2019, the Court issued a screening order finding that Plaintiff had stated

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cognizable claims for excessive force in violation of the Eighth Amendment against Defendant

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Lozano and for failure to intervene in violation of the Eighth Amendment against Defendant Shirk,

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but failed to state any other claims against any other defendants. (ECF No. 11.) The Court ordered

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Plaintiff to either, within thirty days, file a second amended complaint or notify the Court in writing

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that he does not wish to file a second amended complaint and is willing to proceed only on the

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claims against Defendants Lozano and Shirk that the Court identified as cognizable. (Id. at 9.) The
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time for Plaintiff to either file a second amended complaint or a written notice of his willingness to

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proceed only on the claims found cognizable by the Court has expired, and Plaintiff has failed to

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either file a second amended complaint, a written notice, or otherwise communicate with the Court

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regarding this action.

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II.

Failure to Prosecute and Failure to Obey a Court Order

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A.

Legal Standard

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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. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court

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

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or failure to 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 (9th

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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for failure to comply

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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 cases

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on their merits[;] and (5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d

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

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B.

Discussion

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In this case, Plaintiff has failed to comply with the Court’s April 8, 2019 screening order

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and either file a second amended complaint or a written notice that he is willing to proceed only on

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the cognizable claims identified by the Court. Further, Plaintiff has not requested an extension of

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time to comply with the Court’s April 8, 2019 screening order, or otherwise communicated with

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the Court regarding this action in any manner. Plaintiff’s failure to continue prosecuting this action
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by obeying the Court’s April 8, 2019 order is hindering this litigation from being resolved

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expeditiously and preventing the Court from effectively managing its docket. Therefore, the Court

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finds that both the first and second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendants, 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 responsibility

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it is to move a case toward disposition on the merits but whose conduct impedes progress in that

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direction[,]” which is the case here.

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Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation and internal quotation marks omitted).

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Thus, in this case, the fourth factor weighs in favor of dismissal.

In re Phenylpropanolamine (PPA) Products Liability

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Finally, the Court’s warning to a party that failure to obey the court’s order will result in

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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 April 8, 2019 screening order

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expressly warned Plaintiff that his failure to comply with the Court’s order would result in a

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recommendation of dismissal of this action, without prejudice, for failure to obey a court order and

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for failure to prosecute. (ECF No. 11, at 10.) Thus, Plaintiff had adequate warning that dismissal

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could result from his noncompliance.

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

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

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expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, making

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monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to have no

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effect given that Plaintiff has ceased litigating this case. Therefore, the fifth factor also weighs in

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favor of dismissal.

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III.

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 Plaintiff’s failure to obey a
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court 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 28 U.S.C. § 636(b)(l). Within fourteen (14)

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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 findings”

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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 31, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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