Raymond v. Martin

Filing 89

FINDINGS and RECOMMENDATIONS to Dismiss the Claims of James Raymond Without Prejudice and to Join Him as a Nominal Defendant, signed by Magistrate Judge Jennifer L. Thurston on 9/15/2021. Referred to Judge Dale A. Drozd. Objections to F&R due within 14 days. (Hall, S)

Case 1:18-cv-00307-DAD-JLT Document 89 Filed 09/15/21 Page 1 of 6

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES RAYMOND,

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Plaintiff,

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v.
WARREN MARTIN, et al.,
Defendants.

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INGRID CRAWFORD SMITH, et al.,

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Plaintiffs,
v.

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CITY OF BAKERSFIELD, et al.,
Defendants.

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A.J.C.,
Plaintiff,

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v.
CITY OF BAKERSFIELD, et al.,
Defendants.

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Case No.: 1:18-cv-00307 DAD JLT
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE CLAIMS OF JAMES RAYMOND
WITHOUT PREJUDICE AND TO JOIN HIM AS A
NOMINAL DEFENDANT

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Plaintiffs assert the defendants are liable for the wrongful death of Augustus Joshua Crawford.

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James Raymond, the father of the decedent, initiated this action and proceeded pro se with his claims.
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Case 1:18-cv-00307-DAD-JLT Document 89 Filed 09/15/21 Page 2 of 6

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(See Docs. 1, 5) Because Raymond has failed to comply with the Local Rules and failed to prosecute

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his claims and has absented himself from this litigation, the Court recommends his claims be dismissed

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without prejudice, and the action proceed only with the claims of the remaining plaintiffs.

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I.

Relevant Background

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Plaintiff James Raymond initiated this action by filing a complaint on March 5, 2018. (Doc. 1)

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The Court reviewed the allegations in the complaint pursuant to 28 U.S.C. 1915(e)(2), and determined

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he stated cognizable claims against Officer Martin for violations of the decedent’s right to be free from

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the use of excessive force and the defendant’s failure to provide medical care. (Doc. 5) On November

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3, 2018, Ingrid Crawford Smith and A.C. also filed a complaint as the successors in interest to the

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decedent, asserting the City of Bakersfield, Bakersfield Police Department, County of Kern, Chief

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Martin, and Officer Martin were liable for (1) wrongful death; (2) excessive force in violation of the

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decedent’s civil rights; (3) violations of Cal. Civ. Code §§ 43, 52.1 and the California Constitution; (4)

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assault; and (5) battery. (See Case No. 1:18-cv-1526-DAD-JLT, Doc. 1) Finally, on September 16,

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2019, A.J.C. filed a complaint through her guardian ad litem Bryshanique Allen as a successor in

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interest to the decedent. A.J.C. also sought to hold the City of Bakersfield and the Bakersfield police

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department liable for the wrongful death of the Crawford, violations of the decedent’s civil rights,

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assault, and battery. (See Case No. 1:19-cv-1302-DAD-JLT, Doc. 1) Because the plaintiffs bring

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similar claims and present similar questions of fact and law, the three actions were consolidated for all

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purposes. (See Doc. 65)
On June 10, 2021, the Court issued a scheduling order with the applicable deadlines governing

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the consolidated action. (Doc. 87) The order was served upon James Raymond at the address

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previously provided by the plaintiff. However, the order was returned as “Not Deliverable as

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Addressed: Unable to Forward” but the United States Postal Service on June 24, 2021. In advance of

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that, counsel for the other parties were unable to contact Mr. Raymond to obtain his contribution to the

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joint scheduling conference statement (Doc. 85 at 2) and have been unable to contact him for some

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time (Doc. 88). To date, Raymond’s new and correct address remains unknown, because he has not

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filed a “Notice of Change of Address” with the Court.

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II.

Requirements of the Local Rules
Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the

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Court apprised of his current address: “If mail directed to a plaintiff in propria persona by the Clerk is

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returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties

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within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without

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prejudice for failure to prosecute.” LR 183(b). Because more than 63 days have passed since the

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document was returned as undeliverable because Plaintiff was paroled, he has failed to comply with

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the Local Rules.

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III.

Failure to Prosecute

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“District courts have inherent power to control their dockets,” and in exercising that power, a

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court may impose sanctions including dismissal of an action. Thompson v. Housing Authority of Los

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Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an claims with prejudice, based on a

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party’s failure to prosecute an action or failure to obey a court order, or failure to comply with local

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rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 2995) (dismissal for failure to comply

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with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to

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comply with an order requiring amendment of complaint); Henderson v. Duncan, 779 F.2d 1421, 1424

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(9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).
In determining whether to dismiss an action for failure to prosecute, failure to comply with the

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Local Rules, or failure to obey a court order, the Court must consider several factors, including: “(1)

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

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also

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Ferdik, 963 F.2d at 1260-61; Thompson, 782 F.2d at 831.

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IV.

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Discussion and Analysis
To determine whether to dismiss for failure to prosecute and failure to comply with the Local

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Rules, 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 the claims of James

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Raymond and the Court’s interest in managing the docket weigh in favor of dismissal of his claims.

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See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious

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resolution of litigation always favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district

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courts have inherent interest in managing their dockets without being subject to noncompliant

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litigants). This Court cannot, and will not hold, this case in abeyance based upon his failure to comply

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with the Local Rules and failure to take action to continue prosecution in a timely manner. See Morris

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v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) (explaining a plaintiff has the burden “to

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move toward… disposition at a reasonable pace, and to refrain from dilatory and evasive tactics”).

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Accordingly, these factors weigh in favor of dismissal of the claims of James Raymond and allowing

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the action to proceed only with the active plaintiffs. On the other hand, due to the wrongful death

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claims brought by the other named plaintiffs, and because Mr. Raymond is the father of the decedent,

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he should be joined as a nominal defendant in this case. Cross v. Pacific Gas & Elec. Co., 60 Cal. 2d

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690, 692-93 (1964); Ruttenberg v. Ruttenberg, 53 Cal.App.4th 801, 808 (1997).

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B.

Prejudice to Defendants

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To determine whether the defendant has been prejudiced, 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 prosecute his claims, and the defendants are prejudiced through an inability

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to contact him and engage in discovery related to his claims. Accordingly, this factor weighs in favor

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of dismissal of his claims.

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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, no lesser sanction is feasible given the

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Court’s inability to communicate with Plaintiff. Moreover, the Court recommends that Mr. Raymond

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be joined as a nominal defendant in this case. Cross, 60 Cal.2d 692-93; Ruttenberg, 53 Cal.App.4th

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801, 808 (1997).

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D.

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Given Plaintiff’s failure to comply with the Local Rules and failure to prosecute the action, the

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policy favoring disposition of claims on their merits is outweighed by the factors in favor of dismissal.

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

Public policy

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

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factors”).

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V.

Findings and Recommendations

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Plaintiff James Raymond has failed to follow the requirements of the Local Rules or to

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prosecute his claims in this action. As set forth above, the factors set forth by the Ninth Circuit weigh

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in favor of dismissal of his claims. Accordingly, the Court RECOMMENDS:

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1.

The claims of James Raymond be DISMISSED without prejudice;

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2.

The action proceed with the claims of Plaintiffs Ingrid Crawford Smith, A.C., A.J.C.;

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3.

That James Raymond be joined as a nominal defendant.

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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.”

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The parties are advised that failure to file objections within the specified time may waive the

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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v.

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Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

September 15, 2021

_ /s/ Jennifer L. Thurston
CHIEF UNITED STATES MAGISTRATE JUDGE

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