(PC) Bunton v. City of Fresno Police Department et al

Filing 31

ORDER to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Action Without Prejudice re 7 signed by Magistrate Judge Helena M. Barch-Kuchta on 6/3/2024. Referred to Judge Sherriff. Objections to F&R due within 14 days. (Xiong, J.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN KARL RAY BUNTON,

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Plaintiff,

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v.
FRESNO POLICE OFFICER 1, et al.,

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Defendants.

Case No. 1:23-cv-00104-HBK (PC)
ORDER TO ASSIGN A DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITHOUT PREJUDICE1
14-DAY DEADLINE

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Plaintiff Benjamin Karl Ray Bunton is a state prisoner 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 without prejudice for Plaintiff’s failure to comply with a

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court order and prosecute this action.
BACKGROUND

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Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983.

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(Doc. No. 1, “Complaint”). On April 13, 2023, pursuant to 28 U.S.C. § 1915A the Court issued a

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screening order finding the Complaint failed to state a claim against any Defendants. (See

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generally Doc. No. 6). Plaintiff timely filed a First Amended Complaint. (Doc. No. 7, “FAC”).

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On June 26, 2023, the Court issued a second screening order finding the FAC stated cognizable

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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. Cal. 2022).

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Fourth Amendment unreasonable use of force claims against three Doe Defendants. (See Doc.

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No. 8). Plaintiff filed a Notice indicating he wished to proceed on the claims deemed cognizable

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and dismiss the remaining claims and Defendants. (Doc. No. 9). The Court thereafter permitted

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Plaintiff to engage in discovery for the limited purpose of identifying the Doe Defendants and

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Plaintiff subsequently filed a Motion to Amend in which he supplied the names of the Doe

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Defendants. (Doc. No. 20). On December 1, 2023, the Court granted Plaintiff’s Motion in part

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and directed him to file a Second Amended Complaint naming the Doe Defendants within 30

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days. (Doc. No. 22). During this time, mail sent to Plaintiff was repeatedly returned

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undeliverable despite Plaintiff filing four notices of change of address. (See docket; Doc. Nos.

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18, 21, 25, 28).
On March 3, 2024, Plaintiff filed a Motion for a Status Update stating that he had received

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no mail from the Court for nearly five months. (Doc. No. 23). The Court granted the Motion,

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providing him a courtesy copy of the docket sheet and sua sponte granting Plaintiff an extension

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of time until April 8, 2024 to file a Second Amended Complaint (“SAC”). (See Doc. No. 24).

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On April 2, 2024, Plaintiff filed a pleading titled “Motion to Dismiss Without Prejudice” which

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the Court construed as a Notice of Voluntary Dismissal. (Doc. No. 28). Plaintiff sought to

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voluntarily dismiss his case because his legal papers containing the names of the Doe Defendants

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had been lost during his transfer back to Montana State Prison and he was thus unable to file a

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SAC. (Id. at 2). Because Plaintiff had previously provided the names of the Doe Defendants to

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the Court in his Motion to Amend, the Court disregarded the Motion, provided Plaintiff a

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courtesy copy of the Motion to Amend, and gave Plaintiff an extension of time until May 8, 2024

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to either file a SAC or confirm he wished to voluntarily dismiss his case. (Doc. No. 29). The

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Court expressly warned Plaintiff that “failure to timely file either a ‘Notice Under Rule 41’ or

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‘Second Amended Complaint’ will result in the undersigned recommending the district court

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dismiss this action without prejudice for Plaintiff’s failure to prosecute this action.” (Id. at 2 ¶ 4).

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To date, Plaintiff has not filed any response and the time to do so has passed. (See docket).

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APPLICABLE LAW AND ANALYSIS

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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

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

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

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

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a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61

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(9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone

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

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

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

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Court 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, 291 F.3d at 644 (Trott, J., concurring in affirmance of district court’s involuntary

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dismissal with prejudice of habeas petition where petitioner failed to timely respond to court

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order and noting “the weight of the docket-managing factor depends upon the size and load of the

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docket, and those in the best position to know what that is are our beleaguered trial judges.”).

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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 April 8, 2024 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 for dismissal of this action. (Doc. 29 at 2 ¶ 4). Thus, Plaintiff had adequate

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warning that dismissal could result from his noncompliance. And the instant dismissal is a

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

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satisfying the fifth factor. Indeed, Plaintiff earlier indicated that he wished to voluntarily dismiss

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this action without prejudice. (See Doc. No. 28).

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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.

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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 objections

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with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings

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and Recommendations.” A party’s failure to file objections within the specified time may result in

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waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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

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Dated:

June 3, 2024
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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