Opinion
CV-22-0692-PHX-ROS (JFM)
01-06-2023
Adrien Joshua Espinoza, Plaintiff v. Jesse Spurgin, et al., Defendants.
REPORT & RECOMMENDATION
James F. Metcalf, United States Magistrate Judge.
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of this matter is dispositive of Plaintiff's claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
A. DISCUSSION
On November 15, 2022, the Court ordered (Doc. 20) Plaintiff to complete and return packets for service on defendants Spurgin, Ontiveros, Johnson, Bowser, Johanning, and Alcala. Those service packets were to be returned within twenty-one days. That deadline expired on December 6, 2022.
Plaintiff did not timely do so, and because Plaintiff has been released from prison, the prison mailbox rule no longer applies. The Court observed that Plaintiff has recently filed a Notice of Change of Address (Doc. 26), following a return of mail undeliverable (Doc. 24). However, it did not appear that the Court's service Order (Doc. 20) was returned. Accordingly, an Order to Show Cause (Doc. 28) issued December 12, 2022 giving Plaintiff ten days to either: (1) return completed service packets as previously ordered; or (2) file a response to the order showing cause why this case should not be dismissed for failure to prosecute. That Order (Doc. 28) and the original service Order (Doc. 20) were both sent to Plaintiff at his addresses of record on his two most recent Notices of Change of Address (Docs. 26, 29). Plaintiff's copy of neither order has been returned undeliverable.
The deadline for Plaintiff to respond to the Order to Show Cause expired on December 22, 2022. To date, Plaintiff has not responded nor returned completed service packets.
Rule 41(b) of the Federal Rules of Civil Procedure provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action." In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a party. Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or hearing. Id. at 633. Because dismissal is a harsh penalty, however, it is appropriate only in extreme circumstances of unreasonable delay. Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998).
In determining whether Plaintiff's failure to prosecute warrants dismissal of the case, the Court must weigh the following five factors: "(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 sanctions." Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The appellate courts “may affirm a dismissal where at least four factors support dismissal, or where at least three factors ‘strongly' support dismissal.” Hernandez, 138 F.3d at 399 (citations omitted). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.”" Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).
Here, this case has been effectively stopped from progressing in any manner since November 15, 2022 due to Plaintiff's failure to return completed service packets, and such failure precludes a resolution of his claims on the merits by forestalling service on Defendants. Thus the first, second, and fourth factors call for dismissal. Regarding the third factor, Defendants will likely eventually suffer prejudice from Plaintiff's delays as a result of impacts on their ability to garner evidence to support any defenses.
With regard to the fifth factor, less drastic sanctions, the courts consider whether the court has discussed or tried alternatives, or warned the plaintiffs of the chance of dismissal. Hernandez, 138 F.3d at 401. Here, Plaintiff has been warned in the service Order (Doc. 20 at 12, 13) and the Order to Show Cause (Doc. 28) of possible dismissal of his case for failure to return service packets. Despite those cautions, Plaintiff has failed to respond to the Court, provide the service packets, or to seek extensions of time to do so. This suggests that further admonitions or threats of litigation related sanctions are unlikely to be effective. Given Plaintiff's in forma pauperis status (see service Order, Doc. 20, granting IFP application), monetary sanctions are also unlikely to be effective. However, Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits “[u]nless the court in its order for dismissal otherwise specifies.” In the instant case, the undersigned finds that a dismissal with prejudice would be unnecessarily harsh, and the lesser sanction of dismissing the complaint and action without prejudice is appropriate.
B. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
C. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) The reference of this case to the magistrate judge be WITHDRAWN.
(B) Plaintiff's Complaint (Doc. 1) and this action be DISMISSED WITHOUT PREJUDICE.