Arellano v. Haskins et al

Filing 6

FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice for Plaintiff's Failure to Comply with the Court's Order and Failure to Prosecute, signed by Magistrate Judge Jennifer L. Thurston on 12/10/2017. Referred to Chief Judge Lawrence J. O'Neill. Objections to F&R due within 14 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIK ARELLANO,

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Plaintiff,

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v.
CHAD HASKINS, et al.

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Defendants.

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Case No.: 1:17-cv-01235 - LJO-JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION WITHOUT
PREJUDICE FOR PLAINTIFF’S FAILURE TO
COMPLY WITH THE COURT’S ORDER AND
FAILURE TO PROSECUTE

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Erick Arellano requested to proceed pro se and in forma pauperis in this action, in which he

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asserts Bakersfield Police Officers Chad Haskins and Frederick Martinez violated his Fourth

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Amendment rights through using excessive force in the course of an arrest. Because Plaintiff has failed

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to comply with the Court’s order and failed to prosecute the action, it is recommended that the action

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be DISMISSED without prejudice.

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I.

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Relevant Background
Plaintiff initiated this action by filing a complaint on September 15, 2017. (Doc. 1) The Court

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reviewed the complaint, and noted that while Plaintiff failed to allege “when the arrest occurred, or

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what he was charged with by the officers,” he also directed the Court’s attention to “video proof of the

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incident in the local news archives.” (Id. at 1)

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The Court took judicial notice of Kern County Superior Court records in Case No. BF162809A,
which indicated Plaintiff the challenged arrest occurred on January 14, 2016, and Plaintiff was
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“charged with violations of California Vehicle Code § 2800.4 (evading a peace officer by driving in the

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opposite of traffic), California Vehicle Code § 2800.4 (driving recklessly while evading a peace

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officer), California Penal Code § 30305(a)(1) (possession of ammunition by a person prohibited from

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owning or possessing a firearm), and California Penal Code § 69 (obstruction or resistance of an officer

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through the use of threat or violence).” (Doc. 3 at 2-3) Plaintiff pleaded nolo contendere to each of the

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charges. (Id. at 3)
In light of these facts, the Court issued an order on September 29, 2017, directing Plaintiff to

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“show cause in writing, within fourteen days of the date of service of this Order, why the action should

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not be dismissed as barred” under Heck v. Humphrey, 512 U.S. 477, 486 n.6 (1994). (Doc. 3 at 3) On

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October 6, 2017, Plaintiff requested an extension of time to respond (Doc. 4), which was granted by

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the Court (Doc. 5). Accordingly, Plaintiff was ordered to “respond to the order to show cause no later

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than December 1, 2017.” (Doc. 5 at 1, emphasis in original) To date, Plaintiff has not filed his

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response, or taken any additional action to prosecute the matter.

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II.

Failure to Prosecute and Obey the Court’s Orders
The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a

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party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any

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and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent

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power to control their dockets,” and in exercising that power, a court may impose sanctions including

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dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.

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1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute an action

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or failure to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order); Malone v. U.S.

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Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order);

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to

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comply with local rules).

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III.

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Discussion and Analysis
To determine whether to dismiss an action for failure to prosecute and failure to obey a Court

order, the Court must consider several factors, including: “(1) the public’s interest in expeditious
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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability

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of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61;

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Thomspon, 782 F.2d at 831.
Public interest and the Court’s docket

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A.

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

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Court’s interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier,

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191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always

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favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in

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managing their dockets without being subject to noncompliant litigants). This Court cannot, and will

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not hold, this case in abeyance based upon Plaintiff’s failure to comply with the Court’s orders and

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failure to take action to continue prosecution in a timely manner. See Morris v. Morgan Stanley &

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Co., 942 F.2d 648, 652 (9th Cir. 1991) (explaining a plaintiff has the burden “to move toward…

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disposition at a reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these

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factors weigh in favor of dismissal of the action.

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B.

Prejudice to Defendant

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To determine whether the defendant suffers prejudice, the Court must “examine whether the

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plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of

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the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th

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Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the

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prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiff

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has not taken any action to further prosecuting the action—including responding to the order to show

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cause to demonstrate his claim is not barred —despite being ordered by the Court to do so. Therefore,

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this factor weighs in favor of dismissal.

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C.

Consideration of less drastic sanctions

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The Court “abuses its discretion if it imposes a sanction of dismissal without first considering

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the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical

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Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, the Ninth Circuit has determined that a
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court’s warning to a party that his failure to obey could result in dismissal satisfies the “consideration

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of alternatives” requirement. See Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth

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Circuit explained, “a plaintiff can hardly be surprised” by a sanction of dismissal “in response to

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willful violation of a pretrial order.” Malone, 833 F.2d at 133.
Here, the Court warned Plaintiff in the order to show cause that “his failure to comply with

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this order will result in a recommendation that the case be dismissed.” (Doc. 3 at 3, emphasis in

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original) Significantly, the Court need only warn a party once that the matter could be dismissed for

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failure to comply to satisfy the requirements of Rule 41. Ferdik, 963 F.2d at 1262; see also Titus v.

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Mercedes Benz of North America, 695 F.2d 746, 749 n.6 (3rd Cir. 1982) (identifying a “warning” as

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an alternative sanction). Accordingly, the warnings to Plaintiff satisfied the requirement that the Court

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consider lesser sanctions, and this factor weighs in favor of dismissal of the action. See Ferdik, 963

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F.2d at 1262; Henderson, 779 F.2d at 1424; Titus, 695 F.2d at 749 n.6.

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D.

Public policy

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Given Plaintiff’s failure to prosecute the action and failure to comply with the Court’s orders,

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the policy favoring disposition of cases on their merits is outweighed by the factors in favor of

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dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring

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disposition of cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the

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other four factors”).

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IV.

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Findings and Recommendations
Plaintiff failed to comply with the Court’s order to show cause why the action should not be

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dismissed, despite receiving warnings that failure to comply could result in the action be dismissed. In

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doing so, Plaintiff has also failed to take any action to prosecute this action.

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Based upon the foregoing, the Court RECOMMENDS:

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This action be DISMISSED without prejudice;

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2.

The motion to proceed in forma pauperis (Doc. 2) be terminated as MOOT; and

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3.

The Clerk of Court be DIRECTED to close the action.

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These Findings and Recommendations are 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)(1)(B) and Rule 304 of the Local
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Rules of Practice for the United States District Court, Eastern District of California. Within fourteen

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days after being served with these Findings and Recommendations, any party may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

December 10, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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