Benyamini v. Blackburn et al

Filing 117

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/24/17 RECOMMENDING that this action be dismissed for failure to comply with a court order and failure to prosecute. Referred to Judge Morrison C. England Jr. 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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ROBERT BENYAMINI,

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No. 2:13-cv-0205 MCE AC P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

M. BLACKBURN, et al.,
Defendants.

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Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. By order filed October 2, 2017, the undersigned denied plaintiff’s request for a

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ninety-day extension of time to file a pretrial statement. ECF No. 112. The court did, however,

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provide a brief, fourteen-day extension, up to October 18, 2017, to file a pretrial statement. Id. at

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2. Plaintiff was further warned that failure to file a pretrial statement could result in the

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imposition of sanctions, including dismissal of this action. Id. The deadline has now passed and

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plaintiff has yet to file his pretrial statement.

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“District courts have the inherent power to control their dockets. In the exercise of that

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power they may impose sanctions including, where appropriate, default or dismissal.” Thompson

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v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S.

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626 (1961)). A court may dismiss an action 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. Fed. R. Civ. P. 16(f); Fed. R.
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Civ. P. 41(b); L.R. 110; Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (citing United States

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v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)) (dismissal for noncompliance with local rule);

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Malone v. United States Postal Serv., 833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure

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to comply with court order).

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In determining whether to dismiss a claim for failure to prosecute or
failure to comply with a court order, the Court must weigh the
following factors: (1) the public’s interest in expeditious resolution
of litigation; (2) the court’s need to manage its docket; (3) the risk
of prejudice to defendants/respondents; (4) the availability of less
drastic alternatives; and (5) the public policy favoring disposition of
cases on their merits.
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d
1258, 1260-61 (9th Cir. 1992)).
The court finds that the public’s interest in expeditiously resolving this litigation and the

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court’s interest in managing the docket weigh in favor of dismissal. This action has been pending

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since February 2013, and there is no evidence that plaintiff has made any attempt to file a pretrial

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statement since the court’s June 30, 2017 order which set the original deadline for submitting a

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pretrial statement. Instead, plaintiff waited until a week before his statement was due to file a

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motion for a ninety-day extension that failed to demonstrate that he had made any efforts to

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complete his pretrial statement in the nearly three months since he was first ordered to provide

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one. ECF No. 111. When that motion for extension was denied for failure to show good cause,

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plaintiff proceeded to file a motion requesting the service of subpoenas. ECF No. 114. That

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motion was denied because it essentially sought to re-open discovery, which had been closed for

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nearly three years. ECF No. 115. Plaintiff’s failure to file a timely pretrial statement and

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decision to focus on other matters despite being warned that his case may be dismissed creates the

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possibility that waiting for plaintiff’s compliance will result in the trial in this case being

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postponed, impeding resolution of this case.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal. “To

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prove prejudice, a defendant must establish that plaintiff’s actions impaired defendant’s ability to

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proceed to trial or threatened to interfere with the rightful decision of the case.” Pagtalunan, 291

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F.3d at 642 (citing Malone, 833 F.2d at 131). The risk of prejudice is considered in relation to
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plaintiff’s reason for defaulting. Id. (citing Yourish v. Cal. Amplifier, 191 F.3d 983, 991 (9th Cir.

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1999)). Plaintiff has provided no explanation for his failure to timely comply with the court’s

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order and his failure impairs the defendants’ ability to file a responsive pretrial statement and to

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prepare for and proceed to trial.

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The fourth factor—public policy favoring disposition of cases on their merits—is greatly
outweighed by the factors in favor of dismissal discussed herein.

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Finally, at this late stage in the proceedings, the court finds that there are no other, lesser

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sanctions that would be satisfactory or effective. Despite plaintiff’s failure to demonstrate good

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cause, the court has already provided him with additional time to comply and warned him that

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failure to file a pretrial statement may result in dismissal of the action. ECF No. 112. The court’s

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warning to a party that failure to obey the court’s order will result in dismissal can satisfy the

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“consideration of the alternatives” requirement. Ferdik, 963 F.2d at 1262 (citing Malone, 833 at

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132-133; Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)). In light of the other

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matters which cannot be properly addressed until plaintiff has filed a pretrial statement, and the

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impending trial date, further extensions of time are not feasible. Furthermore, given plaintiff’s

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IFP status and numerous assertions of continued financial hardship, he would likely be unable to

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pay any monetary sanctions, making them of little use.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for failure

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to comply with a court order and failure to prosecute. See Fed. R. Civ. 16(f); Fed. R. Civ. P.

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41(b); L.R. 110.

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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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 24, 2017

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