West v. Pettigrew et al

Filing 207

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 03/13/15 denying 205 Motion for appointment of counsel. Also, RECOMMENDING that this action be dismissed with prejudice. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MACK A. WEST, JR,

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Plaintiff,

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No. 2:11-cv-1692 JAM CKD P

v.

ORDER and FINDINGS AND
RECOMMENDATIONS

RYAN PETTIGREW, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, commenced this action in June 2011. (ECF

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No. 1.) Nearly four years later, the case proceeds on the Second Amended Complaint. (ECF

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Nos. 102, 130.)

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In November 2013, this case was assigned to the undersigned Magistrate Judge. (ECF

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No. 103.) On April 28, 2014, having reviewed the extensive docket of this action and numerous

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recent filings by plaintiff, the undersigned issued a limiting order allowing plaintiff to file only

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certain documents and barring him from having more than one non-dispositive motion pending at

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a time. (ECF No. 142.) Plaintiff was cautioned that failure to comply with this order could result

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in a recommendation that this action be dismissed. (Id.)

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Despite this order, plaintiff continued to file frivolous motions and documents. (See ECF

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Nos. 151, 153, 156, 157, 158, 159, 160, 161, 162.) On August 1, 2014, the court advised

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defendants that they need not respond to plaintiff’s non-dispositive motions unless so ordered.

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(ECF No. 164.)

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As summer turned to fall, plaintiff’s frivolous filings continued. (See ECF Nos. 168, 169,

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170, 173, 177, 178.) On November 20, 2014, the undersigned issued findings and

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recommendations as to defendants’ motion to dismiss pursuant to Rule 12(b)(6). (ECF No. 179.)

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During the pendency of these findings, plaintiff continued to file frivolous documents in violation

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of the limiting order. (ECF Nos. 185, 187, 190, 194, 196, 197, 199, 201.) Currently pending is

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plaintiff’s fifth motion for appointment of counsel, not including motions to reconsider previous

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denials of requests for counsel. (ECF No. 205.)

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On March 6, 2015, the district court adopted the findings and recommendations on

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defendants’ Rule 12(b)(6) motion. (ECF No. 204.) Defendants have requested that plaintiff be

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sanctioned with dismissal under Rule 41(b), and the court has taken this request under

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advisement. (ECF No. 183.) At this point, in light of plaintiff’s blatant disregard of the limiting

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order for the past eleven months, the undersigned considers whether Rule 41(b) dismissal is

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warranted.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

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action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

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1260 (9th Cir. 1992). “In determining whether to dismiss a claim for failure to prosecute or

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failure to comply with a court order, the Court must weigh the following factors: (1) the public’s

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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the

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risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5)

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the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002). Factors (1) and (2) weigh in favor of dismissal. Id.; see also Malone v.

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U.S. Postal Service, 833 F.2d 128, 130-131 (9th Cir. 1987). Factor (5) weighs against dismissal.

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As to factor (3), defendants assert that, even though they need not respond to plaintiff’s

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non-dispositive motions, they are still “bombarded by them” and need to review them, “which
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takes up an inordinate amount of time and expense.” (ECF No. 181 at 3.) By driving up the

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effort and expense required to litigate this action, plaintiff’s weekly filing of frivolous documents

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is impairing defendants’ ability to proceed to trial. See Pagtalunan, 291 F.3d at 642. Thus this

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factor weighs in favor of dismissal.

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As to factor (4), the limiting order was a less drastic alternative to dismissal. The court

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warned plaintiff that failure to abide by the limiting order could result in this action being

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dismissed. See Chatman v. Johnson, 2008 WL 5412212 at *3 (E.D. Cal. Dec. 30 2008) (warning

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plaintiff satisfies requirement that court consider alternatives to dismissal) (findings and

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recommendations adopted by district court Feb. 17, 2009 and affirmed on appeal July 22, 2010),

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citing Buss v. Western Airlines, Inc., 738 F.2d 1053, 1054 (9th Cir. 1984). These tactics have not

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curbed plaintiff’s zeal for frivolous filings. As to other alternative sanctions, “imposing fines or

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attorney fees would be wholly impracticable because plaintiff proceeds pro se and in forma

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pauperis and plaintiff has disregarded all prior warnings regarding sanctions, including the

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sanction of dismissal. These alternatives, therefore, are infeasible.” Id. For these reasons, factor

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(4) weighs in favor of dismissal. Moreover, “[t]he alternative of dismissal without prejudice is

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unsatisfactory because permitting plaintiff to file anew at his whim would only consume yet more

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of the court’s time that could be devoted to other cases on its already overburdened docket.” Id.

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Having considered the above factors, the undersigned concludes that dismissal with
prejudice pursuant to Rule 41(b) is appropriate.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of

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counsel (ECF No. 205) is denied.

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IT IS RECOMMENDED that this action be dismissed with prejudice. See Fed. R. Civ. P.
41(b).

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 13, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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