Nguyen v. California Prison Health Service, et al.

Filing 100

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/10/19 RECOMMENDING that this action be dismissed without prejudice. 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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NAM BA NGUYEN,

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No. 2:13-cv-0963-MCE-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA PRISON HEALTH
SERVICE, et al.,
Defendants.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. On October 17, 2018, the court ordered plaintiff to file a pretrial statement

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within 30 days. ECF No. 93. Despite a lengthy extension of time, plaintiff has not filed a pretrial

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statement and the court recommends that this action be dismissed for failure to prosecute.

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The October 17 order warned plaintiff that his failure to file a pretrial statement could

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result in the imposition of sanctions, including dismissal of this action. Id. On January 4, 2019,

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plaintiff requested a 60-day extension of time. ECF No. 97. The court granted his request. ECF

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No. 98. The extended deadline for filing a pretrial statement has passed, and plaintiff has failed

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to comply with or otherwise respond to the court’s most recent order. Despite the warning that

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failure to file a pretrial statement could result in dismissal, and ample time within which to

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prepare and file a pretrial statement, plaintiff has disobeyed this court’s order and failed to

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prosecute this action. The appropriate action is dismissal without prejudice.
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A district court must “weigh five factors to determine whether to dismiss a case for lack of

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

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

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Eisen,

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31 F.3d 1447, 1451 (9th Cir. 1994); accord, Southwest Marine Inc. v. Danzig, 217 F.3d 1128,

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1138 (9th Cir. 2000). Here, the first two Ferdik factors support dismissal, as it appears that the

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court is devoting its limited judicial resources to this action despite plaintiff’s apparent intent to

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abandon it. Moreover, plaintiff’s failure to comply with court orders and Local Rules delays the

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progress of this litigation, likely causing prejudice to defendant. In addition, the court has already

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warned plaintiff that his failure to file a pretrial statement could result in dismissal, and monetary

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sanctions would be futile given plaintiff’s indigent status. Having considered the Ferdik factors,

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and in light of plaintiff’s failure to prosecute this action by filing a pretrial statement as directed,

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the court finds that dismissal of this action is appropriate.

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Furthermore, a party’s failure to comply with any order or with the Local Rules “may be

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grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or

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within the inherent power of the Court.” E.D. Cal. Local Rule 110. The court may recommend

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that an action be dismissed with or without prejudice, as appropriate, if a party disobeys an order

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or the Local Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did

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not abuse discretion in dismissing pro se plaintiff’s complaint for failing to obey an order to re-

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file an amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856

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F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local

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rule regarding notice of change of address affirmed).

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Accordingly, it is hereby RECOMMENDED that this action be dismissed without
prejudice. See Fed. R. Civ. P. 41(b); E.D. Cal. Local Rule 110, 183(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 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.” The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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Dated: April 10, 2019.

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