(PC) Rice v. Gonzales et al

Filing 19

FINDINGS and RECOMMENDATIONS regarding Dismissal of action for failure to prosecute and failure to obey court order 13 , 18 signed by Magistrate Judge Barbara A. McAuliffe on 2/5/2024. Referred to Judge No District Judge; Objections to F&R due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NICHOLAS RICE,

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Plaintiff,

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v.

(ECF No. 13, 18)
Defendants.
FOURTEEN (14) DAY DEADLINE

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FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO PROSECUTE AND FAILURE
TO OBEY COURT ORDER

GONZALES, et al.,

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Case No. 1:23-cv-01094-NODJ-BAM (PC)

I.

Background
Plaintiff Nicholas Rice (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 29, 2023, in preparing to screen the first amended complaint, the Court issued

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an order requiring Plaintiff to show cause why this action should not be dismissed, without

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prejudice, for failure to exhaust prior to filing suit. (ECF No. 13.) On September 8, 2023, the

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order was returned as “Undeliverable, Return to Sender, Attempted-Not Known, Unable to

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Forward.”

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Following Plaintiff’s failure to file a notice of change of address or otherwise

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communicate with the Court, on November 27, 2013, the Court issued findings and

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recommendations regarding dismissal of this action for failure to prosecute and failure to obey a
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court order. (ECF No. 14.) On November 29, 2023, Plaintiff filed a notice of change of address,

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and the Court re-served the August 29, 2023 order to show cause and November 27, 2023

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findings and recommendations to Plaintiff’s new address. (ECF No. 15.) On December 20,

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2023, the Court vacated the findings and recommendations, and granted Plaintiff’s motion for a

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thirty-day extension of time to respond to the order to show cause. (ECF Nos. 17, 18.)
The extended deadline for Plaintiff to respond to the Court’s order has now expired, and

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Plaintiff has not responded to the August 29, 2023 order to show cause or otherwise

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communicated with the Court.

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II.

Failure to Prosecute and Failure to Obey a Court Order

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A.

Legal Standard

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors:

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

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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B.

Discussion

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Here, Plaintiff’s response to the Court’s August 29, 2023 order to show cause is overdue

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and he has failed to comply with the Court’s order. The Court cannot effectively manage its

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docket if Plaintiff ceases litigating his case. Thus, the Court finds that both the first and second

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factors weigh in favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against

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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d

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639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products

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Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
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 at 132–33; Henderson, 779 F.2d at 1424. Plaintiff was warned in the Court’s

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December 20, 2023 order that failure to comply with that order would result in dismissal of this

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action, without prejudice, for failure to prosecute and failure to obey a court order. (ECF No. 18,

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

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Additionally, at this stage in the proceedings there is little available to the Court that

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

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action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

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likely to have no effect given that Plaintiff has ceased litigating his case.

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III.

Recommendation

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Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY

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RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court

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order and for Plaintiff’s failure to prosecute this action.
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These Findings and Recommendation 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)(l). Within fourteen

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(14) days after being served with these Findings and Recommendation, Plaintiff 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 Recommendation.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual

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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 5, 2024

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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