Blackshire v. City of Sacramento, et al.
Filing
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ORDER and FINDINGS and RECOMMENDATIONS (F&R) signed by Magistrate Judge Kendall J. Newman on 12/12/2017 RECOMMENDING that this action be dismissed and the Clerk of Court be directed to close this case. In light of the recommendations, IT IS HEREBY ORDERED that all pleading, discovery, and motion practice are STAYED pending resolution of the F&R. With the exception of objections to the F&R and any non-frivolous motions for emergency relief, the court will not entertain or respond to any motions and other filings until the F&R are resolved. Referred to District Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (York, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PATRICK BLACKSHIRE
No. 2:17-cv-1531-MCE-KJN PS
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Plaintiff,
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ORDER AND
v.
FINDINGS AND RECOMMENDATIONS
CITY OF SACRAMENTO, et al.,
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Defendants.
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On September 26, 2017, the court denied plaintiff’s motion to proceed in forma pauperis,
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and provided plaintiff with 28 days to either pay the filing fee or file a properly-completed motion
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to proceed in forma pauperis. (ECF No. 4.) Plaintiff was cautioned that failure to timely comply
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with the order may result in dismissal of the action pursuant to Federal Rule of Civil Procedure
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41(b). (Id.)
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Plaintiff ultimately failed to pay the filing fee, nor did he file a properly-completed
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motion to proceed in forma pauperis by the applicable deadline. As such, the court considered
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whether the action should be dismissed. Nevertheless, in light of plaintiff’s pro se status, and the
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court’s desire to resolve the action on the merits, the court first attempted lesser, monetary
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sanctions. Accordingly, on October 31, 2017, the court ordered plaintiff, within 21 days, to:
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(1) pay $100.00 in monetary sanctions based on his failure to comply with the court’s orders and
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failure to prosecute the case, and (2) either pay the filing fee or file a properly-completed motion
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to proceed in forma pauperis. (ECF No. 5.) In the alternative, if plaintiff concluded that he no
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longer wishes to pursue the action, he was permitted to file a notice of voluntary dismissal of the
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action without prejudice within 21 days, in lieu of paying the sanctions. (Id.) Plaintiff was
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expressly cautioned that failure to timely comply with the court’s order would result in dismissal
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of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Id.)
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Although the applicable deadline has now passed, and despite the court’s clear
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admonitions, plaintiff again entirely failed to respond to the court’s order. Therefore, at this
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juncture, the court has little choice but to recommend dismissal of the action pursuant to Federal
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Rule of Civil Procedure 41(b) for failure to comply with court orders and failure to prosecute the
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action.
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Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply
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with these Rules or with any order of the Court may be grounds for imposition by the Court of
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any and all sanctions authorized by statute or Rule or within the inherent power of the Court.”
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Moreover, Eastern District Local Rule 183(a) provides, in part:
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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.
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See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the
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same rules of procedure that govern other litigants”) (overruled on other grounds). A district
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court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to
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Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or
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fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local
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rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act
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sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S.
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Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action
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pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute
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or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52,
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53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground
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for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal
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Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with
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any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir.
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1986) (per curiam) (stating that district courts have inherent power to control their dockets and
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may impose sanctions including dismissal or default).
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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.
Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002).
Here, the first two factors weigh in favor of dismissal, because this case has already been
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delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third
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factor also slightly favors dismissal, because, at a minimum, defendants have been deprived of an
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opportunity to be promptly notified of the lawsuit and prepare their defense. With the passage of
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time, witnesses’ memories fade and evidence becomes stale.
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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, declined to initially dismiss the case, but instead imposed
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minimal monetary sanctions. The court also clearly cautioned plaintiff regarding the potential
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consequences of any continued failure to comply with the court’s orders. Additionally, given
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plaintiff’s initial request to proceed in forma pauperis and his complete failure to respond to the
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court’s orders, the court is not convinced that plaintiff could or would pay any increased
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monetary sanctions if they were ordered.
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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. Indeed, it is plaintiff’s own failure to
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prosecute the case and comply with court orders that precludes a resolution on the merits.
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Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal
is appropriate.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1.
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2. The Clerk of Court be directed to close this case.
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In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading,
The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).
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discovery, and motion practice in this action are stayed pending resolution of the findings and
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recommendations. With the exception of objections to the findings and recommendations and
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any non-frivolous motions for emergency relief, the court will not entertain or respond to any
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motions and other filings until the findings and recommendations are resolved.
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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 (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. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served on all parties and filed with the court within fourteen (14) days after service of the
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objections. The parties are advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th
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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
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IT IS SO ORDERED AND RECOMMENDED.
Dated: December 12, 2017
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