(PC) McCardie v. Nolan et al

Filing 14

ORDER to Randomly Assign Case to District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Action without Prejudice signed by Magistrate Judge Helena M. Barch-Kuchta on 10/25/2024. Referred to Judge Thurston; Objections to F&R due within Fourteen-Days. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDDIE MCCARDY,

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Plaintiff,

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Case No. 1:24-cv-00604-HBK
ORDER TO RANDOMLY ASSIGN CASE TO
DISTRICT JUDGE

v.

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T. NOLAN, CDCR, DEASE, P.
HURLBUT,

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Defendants.

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FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITHOUT PREJUDICE1
14-DAY DEADLINE

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Plaintiff Freddie McCardie is a state prisoner proceeding pro se and in forma pauperis in

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

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District Court dismiss this action without prejudice for Plaintiff’s failure to comply with a court

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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 July 25, 2024, pursuant to 28 U.S.C. § 1915A the Court issued a

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

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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. 2023).

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generally Doc. No. 10). The Court afforded Plaintiff three options to exercise no later than

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August 29, 2024: (1) file an amended complaint; (2) file a notice that he intends to stand on his

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Complaint subject to the undersigned recommending the district court dismiss for reasons stated

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in the July 25, 2024 Screening Order; or (3) file a notice to voluntarily dismiss this action,

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without prejudice, under Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet

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been served. (Id. at 6-7). On August 30, 2024, the Court granted Plaintiff’s motion for extension

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of time, extending Plaintiff’s deadline to respond to the Court’s July 25, 2024 screening order to

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October 15, 2024. (Doc. No. 12).

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In granting his motion for extension of time, the Court expressly warned Plaintiff that if

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he “fails to timely respond to the Court’s July 25, 2024 Screening Order by this extended deadline

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or seek a further extension of time and show good cause, the undersigned will recommend that

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the district court dismiss this action for Plaintiff’s failure to prosecute this action and as a sanction

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for Plaintiff’s failure to comply with a court order under Local Rule 110.” (Id. at 2 ¶ 3). As of

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the date of this of these Findings and Recommendations, Plaintiff has failed to submit a response

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to the Court’s July 25, 2024 Screening Order, or request a further extension of time to comply,

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and the time to do so has expired. (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’

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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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Further, as set forth in the Screening Order, the Court already determined that the Complaint, as

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pled, failed to state a claim, so this factor does not weigh in favor of the Plaintiff. (See Doc. No.

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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 July 25 and August 29

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Orders expressly warned Plaintiff that his failure to respond to the Court’s Order would result in a

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recommendation of dismissal of this action. (Doc. No. 10 at 7 ¶ 2; Doc. No. 12 at 2 ¶ 3). Thus,

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Plaintiff had adequate warning that dismissal could result from his noncompliance. And the

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

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prejudice, thereby satisfying the fifth factor.

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After considering the factors set forth supra and binding case law, the undersigned
recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and/or Local Rule 110.
Accordingly, it is hereby ORDERED:

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The Clerk of Court randomly assign this case to a district judge for consideration of these
Findings and Recommendations.

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It is further RECOMMENDED:

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This action be DISMISSED without prejudice as a sanction for Plaintiff’s failure to obey a

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court order under Local Rule 110 and for failure to prosecute under Rule 41.

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NOTICE TO PARTIES

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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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after being served with a copy of these Findings and Recommendations, a party may file written

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objections with the Court. Id.; Local Rule 304(b). The document should be captioned,

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“Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen

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(15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party

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wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its

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CM/ECF document and page number, when possible, or otherwise reference the exhibit with

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specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by

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the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. §

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636(b)(l)(C). A party’s failure to file any objections within the specified time may result in the

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

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Dated:

October 25, 2024
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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