Opinion
Bruce Robert Montague, Plaintiff, Pro se, San Dimas, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CARLA M. WOEHRLE, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. As stated below, this action should be dismissed without prejudice.
BACKGROUND
Plaintiff Bruce Robert Montague opened this action with a request to proceed without prepayment of the filing fee filed March 8, 2013. [Docket no. 1.] Leave to file was granted, and Plaintiff's Complaint was filed on March 19, 2013. [Docket no. 3.] Plaintiff is appearing pro se on a civil rights complaint under 42 U.S.C. § 1983. [Id.] On September 3, 2013, the court granted Plaintiff leave to proceed in forma pauperis, authorized service of process by the United States Marshal, and ordered Plaintiff to supply information necessary to effect service of process on Defendants. [Docket no. 9.]
Plaintiff identified only one defendant, simply as " Deputy Perez, " and the court directed service of process on " Deputy Perez" on January 9, 2014. [Docket no. 12.] In the Process Receipt and Return and Summons Returned Unexecuted filed April 21, 2014, the Marshal's Service indicated that it learned that, at the time referenced in the complaint, there were multiple deputies by the last name of Perez serving at the San Dimas Sheriff's station, and was unable to serve the summons and complaint without additional information. [Docket nos. 14, 15.]
In a minute order filed September 30, 2014, the court informed Plaintiff that, if he still wanted to pursue this action, he must file a report, on or before October 24, 2014, with any further information he may have that may enable the U.S. Marshal to identify Deputy Perez and effect service of process. [Docket no. 16.] Plaintiff has not filed the required report, asked for an extension of time, or otherwise communicated with the court, and the allotted time has expired.
DISCUSSION
It is well established that district courts have authority to dismiss actions for failure to prosecute or to comply with court orders. See Fed.R.Civ.P. 41(b); Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010)(standard applied in dismissal for failure to prosecute); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)(dismissal for failure to prosecute to avoid undue delay or congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)(dismissal for failure to comply with any court order).
In deciding whether to dismiss for failure to prosecute or to comply with court orders a district court must consider 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." Omstead, 594 F.3d at 1084 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)); see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994)(failure to prosecute); Ferdik, 963 F.2d at 1260-61 (9th Cir. 1992)(failure to comply with court orders).
In the present action, the first two factors -- public interest in expeditious resolution of litigation and the court's need to manage its docket -- weigh in favor of dismissal. Plaintiff has not filed a an ordered report necessary to effective service of process in this action despite being warned of the consequences of such failure. This hinders the court's ability to move this case toward disposition, and suggests that Plaintiff does not intend to litigate this action diligently.
The third factor -- prejudice to defendants -- also weighs in favor of dismissal. A rebuttable presumption of prejudice to a defendant arises when a plaintiff unreasonably delays prosecution of an action. See Eisen, 31 F.3d at 1452-53. Nothing suggests that such a presumption is unwarranted in this case.
The fourth factor -- public policy in favor of deciding cases on the merits -- ordinarily weighs against dismissal. However, it is a plaintiff's responsibility to move towards disposition at a reasonable pace, and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility, despite having been instructed on his responsibilities, granted sufficient time in which to discharge them, and warned of the consequences of failure to do so. In these circumstances, the policy favoring resolution of disputes on the merits does not outweigh Plaintiff's failure to obey court orders or to file responsive documents within the time granted.
The fifth factor -- availability of less drastic sanctions -- also weighs in favor of dismissal. The court cannot move the case toward disposition without plaintiff's compliance with court orders or participation in this litigation. Plaintiff has shown that he is either unwilling or unable to comply with court orders by filing responsive documents or otherwise cooperating in prosecuting this action. Other possible sanctions for Plaintiff's failures are not appropriate with respect to a pro se litigant seeking to proceed in forma pauperis.
Under these circumstances, dismissal for failure to prosecute is appropriate. Such a dismissal should not be entered unless a plaintiff has been notified that dismissal is imminent. See West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). Here, however, Plaintiff has already been warned about the possibility of dismissal, and will receive further notification with this Report and Recommendation and the accompanying notice of the right to file objections to it.
RECOMMENDATION
Accordingly, the magistrate judge recommends that the court issue an order: (1) accepting this Report and Recommendation; and (2) dismissing this action, without prejudice, for failure to prosecute and failure to comply with court orders.