Putney v. Fox et al

Filing 33

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 09/06/18 DENYING 32 plaintiff's "Emergency Petition" and motion for extension of time. Also, RECOMMENDING that this action be dismissed for plaintiff's failure to comply with a court order and failure to state a claim. Referred to Judge William B. Shubb. 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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THOMAS EARL PUTNEY,

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Plaintiff,

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No. 2:17-cv-1507 WBS DB P

v.

ORDER AND

WARDEN ROBERT FOX, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42

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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1).
On September 14, 2017, plaintiff’s complaint was dismissed with leave to amend for

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failure to state a claim. The deadline for filing the amended pleading passed on April 20, 2018,

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but plaintiff did not file a first amended complaint. On July 16, 2018, the undersigned granted

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plaintiff an extension until August 13, 2018, based on plaintiff’s claim that he had already mailed

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his first amended complaint in March 2018. (ECF No. 31.) Presuming this pleading had been lost,

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plaintiff was given an extension of time to re-file it and specifically informed that “[i]f plaintiff

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fails to [file the pleading], the undersigned will recommend that this action be dismissed for

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plaintiff’s failure to comply with a court order and failure to state a claim.”

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Again, the deadline for filing the pleading passed, and plaintiff has not filed the first

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amended complaint. Instead, he filed a document titled “Emergency Petition” (ECF No. 32)

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claiming that he does not have a copy of his pleading for refiling and that the only person who

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does have a copy is an inmate who helped plaintiff draft it. Plaintiff seeks yet another extension

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of time and asks the court to contact this inmate for a copy of the pleading. Plaintiff also seeks an

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institutional transfer “where [he]’ll not be subjected to illegal mail tampering.”

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Plaintiff was previously forewarned that his failure to file an amended complaint would

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result in a recommendation to dismiss this action. Since the court is unconvinced by plaintiff’s

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new claim that another inmate kept a copy of the first amended complaint in this case to “safe

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guard” it, his emergency petition will be denied.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

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action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258,

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1260 (9th Cir. 1992). “In determining whether to dismiss a case for failure to comply with a

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court order the district court must weigh five factors including: ‘(1) the public's interest in

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expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting Thompson

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v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 F.3d 52, 53

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(9th Cir. 1995).

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In determining to recommend that this action be dismissed, the court has considered the

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five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal

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of this action. The action has been pending since May 2017, and plaintiff has been directed to file

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an amended pleading since September 14, 2017. Although plaintiff has had nearly one year to file

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a first amended complaint, he has either failed to meet deadlines or has sought multiple

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extensions, he has asserted unsubstantiated claims of mail tampering, and he has raised an

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altogether new claim that another inmate retains the only copy of plaintiff’s allegedly previously-

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filed pleading. Plaintiff’s failure to comply with court orders to file his first amended complaint

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suggests that he has in fact abandoned this action and that further time spent by the court thereon
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will consume scarce judicial resources in addressing litigation which plaintiff demonstrates no

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intention to pursue.

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The fifth factor also favors dismissal. The court has advised plaintiff of the requirements

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under the Local Rules and granted ample additional time to file the pleading, all to no avail. The

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court finds no suitable alternative to dismissal of this action.

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Under the circumstances of this case, the third factor, prejudice to defendants from

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plaintiff’s failure to oppose the motion, should be given little weight. Plaintiff’s pleading was

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dismissed for failure to state a claim, and there are not defendants current in this action. The

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fourth factor, public policy favoring disposition of cases on their merits, weighs against dismissal

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of this action as a sanction. However, for the reasons set forth supra, the first, second, and fifth

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factors strongly support dismissal and the third factor does not mitigate against it. Under the

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circumstances of this case, those factors outweigh the general public policy favoring disposition

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of cases on their merits. See Ferdik, 963 F.2d at 1263.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s “Emergency Petition” and
motion for extension of time (ECF No. 32) is DENIED; and
IT IS HEREBY RECOMMENDED that this action be dismissed for plaintiff’s failure to
comply with a court order and failure to state a claim.

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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, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Any response to the objections shall be filed and served within fourteen

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days after service of the objections. Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: September 6, 2018

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/DLB7;
DB/Inbox/Substantive/putn1507.fta2

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