McCain v. California Highway Patrol et al

Filing 173

ORDER signed by Judge Kimberly J. Mueller on 1/8/14 ORDERING that plaintiff's claim may proceed. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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No. 2:11-cv-01265-KJM-AC

TERRYLYN MCCAIN,

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Plaintiff,
v.

ORDER

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CALIFORNIA HIGHWAY PATROL, et
al.,

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Defendants.

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On May 5, 2013, this court ordered plaintiff Terrylyn McCain (“plaintiff”) to

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show cause, ECF No. 163, why her claim should not be dismissed for (1) failure to prosecute

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and (2) failure to comply with the court’s previous order, ECF No. 59, which directed plaintiff

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to file a status report within fourteen days of her release from confinement. In response,

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plaintiff filed a “Case Management Report,” in which she cited problems with receiving mail

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and various detentions as preventing fulfillment of her duties to the court. ECF No. 166. After

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evaluating the relevant factors, the court finds that plaintiff, acting pro se, has shown good

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cause and that her claim may thus proceed.

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Federal Rule of Civil Procedure 41(b) permits dismissal where “the plaintiff
fails to prosecute or to comply with . . . a court order.” FED. R. CIV. P. 41(b). “District courts
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have the inherent power to . . . ‘impose sanctions including, where appropriate, . . . dismissal of

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a case.’” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (quoting Thompson v. Hous.

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Auth., 782 F.2d 829, 831 (9th Cir. 1986)). However, “dismissal is a harsh penalty and . . .

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should be only be imposed in extreme circumstances.” Id. (quoting Hamilton Copper & Steel

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Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990)).

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When weighing dismissal under Rule 41(b), the court must consider five factors:

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

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

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

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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Ferdik, 963 F.2d at 1260–61. Additionally,

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dismissal “must be supported by a showing of unreasonable delay,” which “creates a

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presumption of injury to the defense.” Henderson, 779 F.2d at 1423 (citations omitted).

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Here, the first and second factors weigh in favor of dismissal, whereas the third,

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fourth and fifth weigh against. The first factor, as a matter of law, “always favors dismissal”

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because dismissal most expediently resolves the matter. Pruett v. Astrue, No. 2:11-cv-00195

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FCD KJN, 2011 WL 1327039, at *3 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th

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Cir. 1999)). Similarly, the second factor favors dismissal here both because failure to

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vigorously prosecute with all due haste impedes the court’s efficiency and failure to comply

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with court orders burdens both the court and opposing parties.

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The remaining factors, however, do not counsel dismissal. Defendants have

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suffered minimal, if any, prejudice from the delayed filing of plaintiff’s status report. The court

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previously ordered plaintiff to file a report within fourteen days of release from confinement.

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Although failing to comply with that deadline, plaintiff filed her report on May 9, 2013—only

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eleven days later—and the court has not observed any prejudice defendants have suffered in the

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interim. Further, such a short lapse is insufficient to constitute a “showing of unreasonable

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delay” so as to “create[] a presumption of injury to the defense.” Henderson, 779 F.2d at 1423

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(citations omitted).

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The fourth factor also weighs against dismissal. Weighing this factor requires a

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comparative analysis of the “policy favoring disposition on the merits” against “the

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responsibility of the moving party to move towards that disposition at a reasonable pace, . . .

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refrain[ing] from dilatory or evasive tactics.” Morris v. Morgan Stanley & Co., 942 F.2d 648,

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652 (9th Cir. 1991). Here, the court does not find that plaintiff engaged in strategic

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maneuvering to prolong litigation. Rather, the court accepts as likely plaintiff’s proffered

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explanations—interference with receipt of mail and physical detention—for inadvertent

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noncompliance.

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Finally, the fifth factor also weighs against dismissal. Review of the docket

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does not reveal other instances of failure to prosecute or noncompliance. In fact, until the

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instant order to show cause, this court has not previously warned plaintiff of the possibility of

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dismissal. As such, especially in light of plaintiff’s pro se status, the court finds a “less drastic

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sanction[]”—warning—to be available and proper. Accordingly, plaintiff is cautioned that

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further failure to prosecute or comply with court orders may result in sanctions up to and

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including dismissal.

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Plaintiff’s claim may proceed.

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IT IS SO ORDERED.

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Dated: January 8, 2014.

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UNITED STATES DISTRICT JUDGE

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