(PC)Childers v. Fabritio et al

Filing 20

FINDINGS and RECOMMENDATIONS that this Case 1 be Dismissed Without Prejudice, signed by Magistrate Judge Helena M. Barch-Kuchta on 04/28/2021. Referred to Judge Unassigned DJ. Objections to F&R Due Within Fourteen-Days. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALLEN LEE CHILDERS,

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Plaintiff,

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v.

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ELAINE ROSA, psychologist,

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No. 1:18-cv-01241-NONE-HBK
FINDINGS AND RECOMMENDATIONS THAT
THIS CASE BE DISMISSED WITHOUT
PREJUDICE1
OBJECTIONS DUE IN FOURTEEN DAYS2

Defendant.

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This matter comes before the court upon initial review of the file, which was reassigned to

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the undersigned on November 17, 2020. (Doc. No. 18). As more fully set forth below, the

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undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to

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effectuate service and prosecute this action.

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I.

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FACTS AND BACKGROUND
Plaintiff Allen Lee Childers, while a prisoner, initiated this pro se action by filing a civil

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rights complaint filed under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff was granted leave to

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proceed in forma pauperis. (Doc. No. 7). On May 20, 2019, the court issued findings and

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recommendations concluding plaintiff’s complaint stated cognizable claims for medical deliberate

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indifference and conditions of confinement against defendant Elaine Rosa. (Doc. No. 12). On

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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca.
2019).
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Because plaintiff is no longer incarcerated, he is afforded the statutory 14-day period to object.

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June 3, 2019, plaintiff was released from prison and filed a notice of change of address. (Doc.

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No. 13). The findings and recommendations were fully adopted on August 13, 2019. (Doc. No.

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14). On August 20, 2019, the court ordered plaintiff to complete service forms within thirty (30)

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days so the court direct the United States Marshal to effectuate service upon the defendant. (Doc.

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No. 15). The order cautioned plaintiff that his failure to timely comply could result in a

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dismissal of this action. (Id. at ¶ 5). On June 12, 2020, after plaintiff failed to timely return

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completed service forms, the court issued an order to show cause “why this case should not be

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dismissed for his failure to prosecute and failure to comply with a court order.” (Doc. No. 17).

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The court’s show cause order was returned as undeliverable on July 9, 2020. The court’s order

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reassigning this case to the undersigned was also returned as undeliverable on December 14,

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2020. On December 4, 2020, the court redirected the clerk to re-serve the August 20, 2019 show

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cause order and order reassigning this case to the undersigned. (See docket entry dated December

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4, 2020). As of the date of these findings and recommendations, plaintiff has not returned

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completed service forms and has not responded to the order to show cause, despite it being resent

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on December 4, 2020 and not returned as undeliverable.

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II.

APPLICABLE LAW
If a defendant is not served within ninety (90) days after a complaint is filed, the court

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must, after notice to the plaintiff, dismiss the action without prejudice. Fed. R. Civ. P. 4(m)

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(emphasis added). Similarly, Rule 41(b) permits the court to involuntarily dismiss an action

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when a litigant fails to prosecute an action or fails to comply with other Rules or with a court

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order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889

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(9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d

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683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that

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courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local

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Rule 110 also permits the court to impose sanctions on a party who fails to comply with the

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court’s Rules or any order of court.

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Although involuntary dismissal is a harsh penalty, it “is incumbent upon the Court to
manage its docket without being subject to routine noncompliance of litigants.” Pagtalunan v.
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Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41,

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the court must consider: (1) the public interest in expeditious resolution of litigation; (2) the

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court’s need to manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring

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disposition on the merits; (5) the availability of less drastic sanctions. See Applied Underwriters,

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913 F.3d at 889 (noting court that these five factors “must” be analyzed before a Rule 41

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involuntarily dismissal) (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th

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Cir. 1987) (reviewing five factors and independently reviewing the record because district court

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did not make finding as to each); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th

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Cir. 2000) (listing the same, but noting the court need not make explicit findings as to each)

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(emphasis added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of

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pro se 1983 action when plaintiff did not amend caption to remove “et al” as the court directed

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and reiterating that an explicit finding of each factor is not required by the district court).

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III.

ANALYSIS
Plaintiff failed to comply with the Court’s August 20, 2019 order directing him to return

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completed service so that service could be effectuated in a timely fashion as mandated by Fed. R.

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Civ. P. 4. After the court’s order to show cause was returned as undeliverable on July 9, 2020,

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the court directed the clerk to re-serve the court’s June 12, 2020 show cause order on plaintiff on

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December 4, 2020 and reset the deadline for thirty (30) days. (See docket entry dated December

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4, 2020). Thus, plaintiff had a second opportunity to comply to show cause why the case should

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not be dismissed under Fed. R. Civ. P. Rule 4(m) but failed to respond. Thus, the undersigned

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finds the case subject to dismissal under Fed. R. Civ. P. 4(m).

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Alternatively, the undersigned considers each of the above-stated factors and concludes

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dismissal is warranted in this case under Fed. R. Civ. P. 4(b). The expeditious resolution of

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litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California

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Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). Turning to the second factor, the court’s need to

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efficiently manage its docket cannot be overstated. This court has “one of the heaviest caseloads

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in the nation,” and due to unfilled judicial vacancies, which is further exacerbated by the Covid-

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19 pandemic, operates under a declared judicial emergency. See Amended Standing Order in
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Light of Ongoing Judicial Emergency in the Eastern District of California. The court’s time is

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better spent on its other matters than needlessly consumed managing a case with a recalcitrant

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litigant. Indeed, “trial courts do not have time to waste on multiple failures by aspiring litigants

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to follow the rules and requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J.,

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concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition

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where petitioner failed to timely respond to court order and noting “the weight of the docket-

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managing factor depends upon the size and load of the docket, and those in the best position to

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know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk

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that evidence will become stale or witnesses' memories will fade or be unavailable and can

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prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40,

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57 (1968). The court has already attempted a less drastic option by issuing a second order to

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show cause, to which plaintiff failed to respond. Additionally, the instant dismissal is a dismissal

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without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby addressing

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the fifth factor.

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Plaintiff failed to comply with the court’s August 20, 2019 order to return the completed

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service. (Doc. No. 15). Plaintiff has not served defendant despite having over 18 months to do so

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and being warned that failure to do would be cause for dismissal. After considering the factors

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set forth supra and binding case law, the undersigned alternatively recommends dismissal,

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without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110.

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Accordingly, it is RECOMMENDED:

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This case be dismissed without prejudice under Fed. R. Civ. P. 4(m) and/or Fed. R. Civ. P.

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41(b) and/or Local Rule 110.
NOTICE TO PARTIES
These findings and recommendations will be submitted to the United States district judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen

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(14) days after being served with these findings and recommendations, a party 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 Recommendations.” Parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:
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April 28, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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