(PC) Schowachert v. Polley

Filing 12

ORDER to Assign a District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Action Without Prejudice for Plaintiff's Failure to Prosecute re: 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Helena M. Barch-Kuchta on 9/18/2023. Referred to Judge de Alba; Objections to F&R due within fourteen (14) days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:21-CV-01107-HBK (PC)

JOHN PAUL FRANK
SCHOWACHERT,

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ORDER TO ASSIGN A DISTRICT JUDGE

Plaintiff,

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v.

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BILL POLLEY and ALL OFFICERS ON
DUTY ON JANUARY 13, 2017,

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FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITHOUT PREJUDICE
FOR PLAINTIFF’S FAILURE TO
PROSECUTE1
FOURTEEN-DAY DEADLINE

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Defendants.

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Plaintiff John Paul Frank Schowachert, a prisoner, is proceeding pro se and in forma

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pauperis in this civil rights action. For the reasons set forth below, the undersigned recommends

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that the District Court dismiss this action for Plaintiff’s failure to comply with a court order and

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prosecute this action.
BACKGROUND

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Plaintiff John Paul Frank Schowachert, a prisoner, initiated this action on June 16, 2021,

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by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1, “Complaint”). Plaintiff

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initiated this action in the Sacramento Division of the Eastern District of California, and it was

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transferred to this Court. (Doc. Nos. 1, 6). The Complaint identifies as Defendants: (1) Jail

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Commander Bill Polley, and (2) “all officers on duty on 1-13-2017.” (Id. at 1-2). The Complaint

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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.
2022).

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is disjointed, difficult to discern, and contains rambling and unrelated sentences pertaining to

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Plaintiff’s family. (Id. at 3). Plaintiff alleges on January 13, 2017, all corrections officers on duty

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at the Tuolumne County Jail conspired to murder him. (Id. at 3). As a result, Plaintiff lost his

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wife, his house, suffered a traumatic brain injury, and experiences seizures. (Id.). As relief

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Plaintiff seeks $10,000,000.00 in damages. (Id. at 6).

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On August 4, 2023, the undersigned issued an order to show cause directing Plaintiff to

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show cause why this action should not be dismissed because his claim is barred by the statute of

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limitations and because the Complaint is otherwise frivolous. (Doc. No. 10, “Order to Show

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Cause”). Plaintiff was directed to deliver his response to the show cause order to correctional

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officials for mailing no later than September 5, 2023. (Id. at 5 ¶ 1). The Court advised Plaintiff

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that he could alternatively file a notice of voluntary dismissal under Rule 41 of the Federal Rules

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of Civil Procedure to avoid a strike. (Id.). Finally, Plaintiff was advised that his failure to timely

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respond to the Order to Show Cause would result in the undersigned recommending the district

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court dismiss “this case as a sanction for Plaintiff’s failure to comply with a court order and for

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failing to prosecute this action after its determination that the complaint is frivolous[.]” (Id. at 5).

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As of the date of these Findings and Recommendations, Plaintiff has not filed a response to the

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Order to Show Cause and the time to do so has lapsed.2

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APPLICABLE LAW AND ANALSYIS

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A. Legal Standard

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Federal Rule of Civil Procedure 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). Similarly, this Court’s Local Rules, which correspond with

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Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with …

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any order of the Court may be grounds for the imposition by the Court of any and all sanctions …

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within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power

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As of the date of these Findings and Recommendations, 13 days have lapsed since the September 5, 2023
deadline, providing sufficient time for mailing.

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

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of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).

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

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order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S.

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Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court

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

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prosecute and to comply with local rules). In determining whether to dismiss an action, the Court

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must consider the following factors: (1) the public’s interest in expeditious resolution of

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litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants;

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

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drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir.

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1988).

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B. Analysis

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After considering each of the above-stated factors, the undersigned concludes dismissal

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without prejudice is warranted in this case. As to the first factor, 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).

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Turning to the second factor, this Court’s need to efficiently manage its docket cannot be

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overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in

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filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates

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under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial

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Emergency in the Eastern District of California. This Court’s time is better spent on its other

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matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot

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effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court

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order. Thus, the Court finds that the second factor weighs in favor of dismissal.

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Delays inevitably have the inherent risk that evidence will become stale or witnesses’
memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third
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factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice

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to defendant—weighs in favor of dismissal since a presumption of injury arises from the

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unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir.

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1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action,

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the third factor weighs in favor of dismissal.

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The fourth factor usually weighs against dismissal because public policy favors the

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disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002).

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However, “this factor lends little support to a party whose responsibility it is to move a case

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toward disposition on the merits but whose conduct impedes progress in that direction,” which is

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the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217,

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1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on

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multiple failures by aspiring litigants to follow the rules and requirements of our courts.”

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Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of

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district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to

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timely respond to court order and noting “the weight of the docket-managing factor depends upon

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the size and load of the docket, and those in the best position to know what that is are our

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beleaguered trial judges.”). Further, the Court’s August 4, 2023 Order to Show Cause found the

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Complaint failed to state any cognizable claim because it was factually and legally frivolous.

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(See Doc. No. 10).

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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 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s August 4, 2023 Order to

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Show Cause expressly warned Plaintiff that his failure to comply with the Court’s order would

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result in the undersigned recommending the district court to dismiss this action for Plaintiff’s

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failure to comply with a court order and prosecute this case. (See Doc. No. 10 at 5,

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6 ¶ 2). Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance.

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And the instant dismissal is a dismissal without prejudice, which is a lesser sanction than a

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dismissal with prejudice, thereby addressing the fifth factor.
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After considering the factors set forth supra and binding case law, the undersigned

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

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Accordingly, it is ORDERED:

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The Clerk of the Court randomly assign this case to a District Judge.

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It is further RECOMMENDED:

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This action be DISMISSED without prejudice for Plaintiff’s failure to obey court orders

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and failure to prosecute. Because the dismissal for failure to prosecute and obey a court order is

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after the Court screened the complaint and directed Plaintiff to file an amended complaint, this

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dismissal shall qualify as a strike for purposes of 28 U.S.C. § 1915. Harris v. Mangum, 863 F.3d

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1133, 1143 (9th Cir. 2017).

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NOTICE

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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of the date of service of 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.” A party’s failure to file objections within the specified time

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may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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

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Dated:

September 18, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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