Blank et al v. Sacramento Regional Transit et al

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/2/17, RECOMMENDING that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Clerk be directed to vacate all dates and close this case. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Matter REFERRED to District Judge John A. Mendez. (Kastilahn, A)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL LOUIS BLANK, et al., 12 Plaintiff, 13 14 15 No. 2:17-cv-0371-JAM-KJN PS v. FINDINGS AND RECOMMENDATIONS SACRAMENTO REGIONAL TRANSIT, et al.,, Defendant. 16 17 18 Plaintiff Paul Blank, proceeding without counsel, commenced this action on February 21, 19 2017.1 (ECF No. 1.) On April 19, 2017, this court granted plaintiff’s motion to proceed in forma 20 pauperis. (ECF No. 4.) In the same order, while noting that “plaintiffs’ 4-page complaint is 21 rambling and largely unintelligible” and that “the court is highly skeptical that Paul Blank can 22 allege facts sufficient to support a viable civil rights claim under § 1983 and/or a claim under the 23 ADA against any of the named defendants, in an abundance of caution” this court granted 24 plaintiff leave to amend. (Id.) Paul Blank was ordered to file either (a) a first amended complaint 25 in accordance with the requirements of the order or (b) a notice of voluntary dismissal of the 26 action without prejudice, within 28 days of April 19, 2017. (Id.) Paul Blank has failed to comply 27 28 1 The claims of corporate plaintiff, Paul Blank Apparel Inc., were dismissed without leave to amend on May 26, 2017. (ECF No. 5.) 1 1 2 with the order. Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 3 with these Rules or with any order of the Court may be grounds for imposition by the Court of 4 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 5 Moreover, Eastern District Local Rule 183(a) provides, in part: 6 7 8 9 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules. 10 11 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 12 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 13 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 14 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 15 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 16 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 17 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 18 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 19 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 20 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 21 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 22 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 23 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 24 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 25 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 26 may impose sanctions including dismissal or default). 27 28 A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court’s local 2 1 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: (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. 2 3 4 5 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46 6 F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of 7 conditions precedent before the judge can do anything, but a way for a district judge to think 8 about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 9 (9th Cir. 2006). 10 Although involuntary dismissal can be a harsh remedy, on balance the five relevant 11 factors weigh in favor of dismissal here. The first two Ferdik factors strongly support dismissal, 12 given that plaintiff’s failure to comply with the court’s orders and failure to prosecute his case 13 have unreasonably delayed the progress of this litigation. The third Ferdik factor also favors 14 dismissal. Although the defendants have not yet appeared in the case, they have been named in a 15 civil action, and plaintiff’s failure to prosecute the case has hampered defendants’ ability to move 16 this case forward towards resolution. 17 Additionally, the fifth Ferdik factor, which considers the availability of less drastic 18 measures, also supports dismissal. As noted above, the court has already attempted less drastic 19 sanctions—granting the plaintiff leave to amend—prior to recommending dismissal. However, 20 plaintiff failed to comply with the court’s order. 21 Finally, the court finds that the fourth Ferdik factor, which addresses the public policy 22 favoring disposition of cases on the merits, does not materially counsel against dismissal. If 23 anything, a disposition on the merits has been hindered by plaintiff’s own failure to comply with 24 the court’s order and prosecute his case. In any event, the court finds that the fourth Ferdik factor 25 is outweighed by the other Ferdik factors. 26 Consequently, dismissal is appropriate. 27 //// 28 //// 3 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. The action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 3 41(b). 4 2. The Clerk of Court be directed to vacate all dates and close this case. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 7 days after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 shall be served on all parties and filed with the court within fourteen (14) days after service of the 11 objections. The parties are advised that failure to file objections within the specified time may 12 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 13 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 14 15 IT IS SO RECOMMENDED. Dated: June 2, 2017 16 17 14/17-371 Blank v. Sac Rt F&R 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?