Opinion
6:20-cv-01204-MK
08-24-2021
MICHAEL T. KALI, Plaintiff, v. CENTRAL INTELLIGENCE SERVICES, Defendant.
FINDINGS AND RECOMMENDATION
Mustafa T. Kasubhai, United States Magistrate Judge
Pro Se Plaintiff filed a Complaint (ECF No. 1), an Application for Leave to Proceed In Forma Pauperis (“IFP”) (ECF No. 2), and a motion for a preliminary injunction (ECF No. 4) in this Court on July 23, 2020. After Plaintiff's motion for a preliminary injunction was denied, the Court granted Plaintiff IFP status, but otherwise dismissed Plaintiff's claims, instructed Plaintiff as to the deficiencies of the Complaint, and permitted Plaintiff leave to file an amended complaint within sixty days. ECF No. 8. On January 6, 2021, the Court ordered Plaintiff to file an amended complaint within thirty days, and explained that the failure to do so would result in dismissal. ECF No. 19. On July 22, 2021, the Court ordered the following:
Within twenty-one (21) days from the date of this Order, Plaintiff shall file a response to this Order, explaining why the Court should not dismiss this action. Failure to comply with this Order in a timely fashion may result in dismissal of this action for failure to prosecute and to comply with a court order.ECF No. 23. As of the date of this Order, the docket reflects that Plaintiff has failed to file a response to the order to show cause or file an amended complaint.
STANDARD
Federal courts possess the undisputed authority to control their dockets and dismiss a case that a plaintiff fails to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962). Federal Rule of Civil Procedure 41(b) allows for dismissal of an action for failure to prosecute. A dismissal for failure to prosecute may be ordered by the Court upon motion by an adverse party, or upon the Court's own motion. See Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “[D]ismissal for failure to prosecute is particularly appropriate when such a failure is coupled with disobedience to court orders or a disregard of established rules.” Gierloff v. Ocwen, No. 6:15-cv-01311-MC, 2017 WL 815118, at *1 (D. Or. Mar. 1, 2017) (citation omitted).
In determining whether to dismiss for failure to prosecute or comply with a court order, the court weighs 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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
DISCUSSION
Dismissal is appropriate in this case for at least two reasons. First, Plaintiff's failure to respond to the Court's show cause order itself weighs in favor of dismissing this action. See W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); Fed.R.Civ.P. Rule 41(b). Second, as discussed in more detail below, the Pagtalunan five-factor test also strongly favors dismissal.
The public's interest in expeditious resolution of litigation and the Court's need to manage its docket favor dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“It is incumbent upon the Court to manage its docket without being subject to routine noncompliance . . . .”). Plaintiff has not participated in this lawsuit since other than filing it in July 2020. Further, he failed to respond to the Court's order to show cause. The first two factors favor dismissal.
Plaintiff has “offered no clear explanations of what actions he . . . took during the relevant time period[].” Pagtalunan, 291 F.3d at 643. The Court thus finds the third factor weighs in favor of dismissal. Id.
With respect to the availability of less drastic alternatives, the Court has already employed the less drastic alternative of issuing a show cause order. Plaintiff failed to take advantage of this alternative. Accordingly, this factor also weighs in favor of dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (finding the requirement that court consider less drastic alternatives may be satisfied by warning the litigant that failure to obey court order will result in dismissal).
Finally, “Public policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal, ” Pagtalunan, 291 F.3d at 643, but only weakly because Plaintiff's failure to prosecute or to respond to the Court's order to show cause severely impairs disposition on the merits, see United States ex rel. Berglund v. Boeing Co., 835 F.Supp.2d 1020, 1053-54 (D. Or. 2011). Importantly, the fifth factor alone cannot outweigh the other four. In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994).
In sum, although public policy favors disposition on the merits, Plaintiff's failures to prosecute this case have obstructed the Court's ability to reach the merits. All other factors weigh in favor of dismissal. Accordingly, the court should dismiss this action for lack of prosecution and for failure comply with court orders.
RECOMMENDATION
For the reasons above, because Plaintiff has failed follow court orders and failed to prosecute his case, the complaint should be DISMISSED and a judgment should be prepared.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed. R. Civ. P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).