Bourn v. People of the State of California

Filing 21

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/13/2015 RECOMMENDING that this action be dismissed with prejudice pursuant to F.R.Cv.P. 41(b) and 4(m) and Local Rules 110 and 183(a); REFERRING this matter to Chief Judge Morrison C. England, Jr.; ORDERING that any objections be filed within fourteen (14) days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN FLOYD BOURN,

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No. 2:14-cv-01824-MCE-AC

Plaintiff,
v.

FINDINGS & RECOMMENDATIONS

PEOPLE OF THE STATE OF
CALIFORNIA,
Defendant.

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Plaintiff is proceeding in this action in pro per. On August 4, 2014, plaintiff filed a
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complaint against the People of the State of California along with a motion to proceed in forma
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pauperis. ECF Nos. 1 & 3. On September 12, 2014, the court granted plaintiff’s application and
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dismissed his complaint for asserting claims barred by the Eleventh Amendment. ECF No. 7. On
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October 14, 2014, plaintiff filed a first amended complaint (“FAC”), again naming as defendant
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the People of the State of California. ECF No. 10. The court again dismissed plaintiff’s
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complaint as barred by the Eleventh Amendment on October 23, 2014. ECF No. 12. In its order,
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the court stressed that if plaintiff has claims against any individual or entity other than the State of
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California he must name those individuals or entities in the caption of his complaint. Id. at 2.
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On November 24, 2014, plaintiff filed a motion for reconsideration along with a notice of
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appeal and a second motion to proceed in forma pauperis. ECF Nos. 13–15. On December 2,
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2014, the court denied plaintiff’s motion for reconsideration and granted him thirty (30) days to

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file an amended complaint. ECF No. 18. In the court’s order it explained that plaintiff’s attempt

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to appeal the dismissal of his FAC with leave to amend did not stay this action. Id. at 3. The

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court also warned plaintiff that failure to file a timely amended complaint would result in the

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undersigned recommending that his claims be dismissed without leave to amend. Id. at 4. On

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January 5, 2015, plaintiff filed a notice of interlocutory appeal. ECF No. 19. Plaintiff has yet to

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file an amended complaint.

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Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action
for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to

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comply with the court’s local rules, or failure to comply with the court’s orders. See, e.g.,

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Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte

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to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest

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Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant

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to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply

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with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260

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(9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss

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an action for failure to comply with any order of the court.”); Pagtalunan v. Galaza, 291 F.3d 639,

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642–43 (9th Cir. 2002) (affirming district court’s dismissal of case for failure to prosecute when

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habeas petitioner failed to file a first amended petition). This court’s Local Rules are in accord.

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See E.D. Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any

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order of the Court may be grounds for imposition by the Court of any and all sanctions authorized

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by statute or Rule or within the inherent power of the Court.”); E.D. Local Rule 183(a) (providing

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that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the court's Local

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Rules, and other applicable law may support, among other things, dismissal of that party’s

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action).

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A court must weigh five factors in determining whether to dismiss a case for failure to

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prosecute, failure to comply with a court order, or failure to comply with a district court’s local

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rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:
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(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
the defendants; (4) the public policy favoring disposition of cases
on their merits; and (5) the availability of less drastic alternatives.

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Id. at 1260–61; accord Pagtalunan, 291 F.3d at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.

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1995), cert. denied, 516 U.S. 838 (1995). The Ninth Circuit Court of Appeals has stated that

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“[t]hese factors are not a series of conditions precedent before the judge can do anything, but a

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way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods.

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Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).

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Although involuntary dismissal can be a harsh remedy, on balance the five relevant

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factors weigh in favor of dismissal of this action. The first two factors strongly support dismissal

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of this action. Plaintiff’s failure to file a second amended complaint (“SAC”) strongly suggests

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that he has abandoned this action or is not interested in seriously prosecuting it. See, e.g.,

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Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in

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expeditious resolution of litigation always favors dismissal.”). Any further time spent by the

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court on this case, which plaintiff has demonstrated a lack of any serious intention to pursue, will

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consume scarce judicial resources and take away from other active cases. See Ferdik, 963 F.2d at

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1261 (recognizing that district courts have inherent power to manage their dockets without being

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subject to noncompliant litigants).

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In addition, the third factor, which considers prejudice to a defendant, should be given

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little weight as none of the defendants have yet been served, and plaintiff’s unreasonable delay in

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prosecuting this action has further delayed the resolution of this case on the merits. Unreasonable

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delay is presumed to be prejudicial. See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab.

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Litig., 460 F.3d at 1227.

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The fifth factor, which considers the availability of less drastic measures, also supports

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dismissal of this action. The court has already pursued remedies that are less drastic than a

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recommendation of dismissal, including giving the plaintiff three opportunities to file amended

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complaints. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) (“[E]xplicit

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discussion of alternatives is unnecessary if the district court actually tries alternatives before
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employing the ultimate sanction of dismissal.”), cert. denied, 488 U.S. 819 (1988). Further,

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despite the court’s warnings that the State of California is immune from suit under the Eleventh

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Amendment plaintiff has so far refused to name any other defendants. See ECF Nos. 10 & 13.

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Plaintiff has also shown an inability to follow the court’s instructions by choosing to file another

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interlocutory appeal, which the court has already told plaintiff does not stay this matter. ECF No.

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19.

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The court also recognizes the importance of giving due weight to the fourth factor, which

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addresses the public policy favoring disposition of cases on the merits. However, for the reasons

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set forth above, factors one, two, three, and five strongly support a recommendation of dismissal

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of this action, and factor four does not materially counsel otherwise. Dismissal is proper “where

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at least four factors support dismissal or where at least three factors ‘strongly’ support dismissal.”

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Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks

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omitted). Under the circumstances of this case, the other relevant factors outweigh the general

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public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed with

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prejudice pursuant to Federal Rule of Civil Procedure 41(b) and 4(m) and Local Rules 110 and

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183(a).

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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)(1). Within fourteen (14)

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days 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. 28 U.S.C. § 636(b)(1); see also E.D.

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Local Rule 304(b). Such a document should be captioned “Objections to Magistrate Judge's

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Findings and Recommendations.” Any response to the objections shall be filed with the court

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and served on all parties within fourteen days after service of the objections. E.D. Local Rule

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304(d). Failure to file objections within the specified time may waive the right to appeal the

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

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Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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DATED: January 13, 2015

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