Watkins v. United States Postal Service

Filing 10

ORDER signed by Magistrate Judge Kendall J. Newman on 10/12/2017 DISMISSING CASE. CASE CLOSED. (Hunt, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAMELA E. WATKINS,

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Plaintiff,

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No. 2:17-cv-612-TLN-KJN PS

v.

ORDER

UNITED STATES POSTAL SERVICE,

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Defendant.

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Plaintiff Pamela Watkins, proceeding without counsel, commenced this action against the

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United States Postal Service on March 23, 2017, and ultimately paid the filing fee. (ECF No. 1.)1

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Liberally construed, plaintiff’s complaint appears to allege some type of civil rights claim based

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on electronic harassment, plaintiff being called names by supervisors and/or co-workers, and

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plaintiff being shocked in her right leg by her “satchel, scanner, and arrow keys.” (Id.) Plaintiff

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seeks monetary damages, a job transfer, an MRI scan, and removal of a foreign body from her

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person. (Id.)

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At an August 31, 2017 status conference, plaintiff appeared representing herself. At that

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time, the court noted the insufficiency of plaintiff’s service of process and that the 90-day period

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Plaintiff has consented to proceed before a United States Magistrate Judge for all purposes
pursuant to 28 U.S.C. § 636(c). (ECF No. 6.)
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for service of process had expired. However, as the court also observed at the status conference,

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the court is not unsympathetic to the difficulties faced by a pro se litigant in representing herself

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in federal court. As such, in light of plaintiff’s pro se status, and the court’s desire to resolve the

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action on the merits, the court granted plaintiff a 30-day extension of time to complete service of

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process and file a proof of service with the court. In the September 1, 2017 order following the

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status conference, the court also expressly referred plaintiff to the applicable Federal Rules to

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consult in order to properly complete service of process. (See ECF No. 9 at 2 [citing Fed. R. Civ.

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P. 4(c)(2) (outlining who may serve process); Fed. R. Civ. P. 4(i)(1)-(2) (outlining the specific

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methods for serving an agency of the United States)].) Nevertheless, plaintiff was also cautioned

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that future failure to properly complete service of process by the required deadline would result in

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dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b). (Id. at 3.)

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Although the new deadline has now long passed, no proof of service was filed indicating

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that plaintiff had properly completed service of process, nor has plaintiff requested an extension

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of time to do so based on good cause. There has also been no appearance by defendant. At this

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juncture, the court has little choice but to dismiss the action pursuant to Federal Rule of Civil

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Procedure 41(b) for failure to comply with court orders and failure to prosecute the 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 v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Specifically, the court

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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.
Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002).
Here, the first two factors strongly weigh in favor of dismissal, because this case has

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already been significantly delayed by plaintiff’s failure to properly serve the defendant. The third

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factor also slightly favors dismissal, because witnesses’ memories fade and evidence becomes

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stale with the passage of time brought about by unnecessary delay.
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Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal,

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because the court has already attempted less drastic alternatives. More specifically, the court,

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cognizant of plaintiff’s pro se status, sua sponte provided plaintiff with an extension of time to

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complete service of process and even referred plaintiff to the appropriate rules of procedure to

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consult in determining how to effectuate service of process. The court cannot provide any further

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instruction without straying into the realm of improperly providing legal advice. Additionally,

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the court finds that the imposition of monetary sanctions would not be an effective lesser remedy

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in this case. In light of the nature of plaintiff’s complaint, as well as her demeanor at the status

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conference, it does not appear that plaintiff is willfully or maliciously failing to comply with court

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orders. As such, the imposition of monetary sanctions would be merely punitive and would not

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advance the objective of moving the case towards a resolution on the merits. Indeed, although the

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court does not reach the merits of plaintiff’s claims, the nature of plaintiff’s allegations also

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suggests that it is unlikely that plaintiff would prevail on the merits.

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Finally, as to the fourth factor, the public policy favoring disposition of cases on their

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merits, that factor is outweighed by the other Ferdik factors. As noted above, the court is not

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unsympathetic to the difficulties faced by plaintiff in attempting to bring this action in federal

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court. However, plaintiff’s continued failure to properly complete service of process, despite an

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extension and appropriate instruction from the court, leaves the court with little confidence that

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this action can be resolved on the merits.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The action is dismissed pursuant to Federal Rule of Civil Procedure 41(b).

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2. The Clerk of Court shall close this case.

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Dated: October 12, 2017

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