Opinion
CV-22-02059-PHX-DGC (MTM)
01-08-2024
Martin Alberto Peralta, Plaintiff, v. David Shinn, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:
I. Summary of Conclusion
This matter is before the Court on its own review. Plaintiff failed to file a “Notice of Substitution,” substituting Defendant Jane/John Doe TSU CO II and Defendant Jane/John Doe Deputy Warden's actual names and the deadline to do so has expired. Accordingly, the Court will recommend that Plaintiff's claims against these Defendants be dismissed without prejudice under Rules 41(b) of the Federal Rules of Civil Procedure.
II. Background
Plaintiff Martin Alberto Peralta, who is confined in the Arizona State Prison Complex (ASPC)-Lewis, filed a pro se civil rights First Amended Complaint pursuant to 42 U.S.C. § 1983. (Doc. 24.) The Court screened the matter and found that Plaintiff stated a claim against Defendant Valles and Defendant Jane/John Doe TSU CO II in Count I, and against Defendants Shinn, Warden Matos, and Jane/John Doe Deputy Warden in Count III. (Doc. 25.) As to Defendant Jane/John Doe TSU CO II and Defendant Jane/John Doe Deputy Warden, the Court ordered Plaintiff to file a Notice of Substitution substituting the names of these Defendants no later than August 29, 2023. (Doc. 25.) Plaintiff failed to do so.
Accordingly, on September 15, 2023, the Court issued an Order requiring Plaintiff to show cause why this action should not be dismissed as to Defendant Jane/John Doe TSU CO II and Defendant Jane/John Doe Deputy for failure to substitute their actual names as ordered and prosecute the case. (Doc. 36.) The Court warned that failure to respond by October 2, 2023, shall result in dismissal of this case as to these Defendants. (Doc. 36.)
On November 9, 2023, however, counsel for Plaintiff filed a Notice of Appearance. (Doc. 40.) Thus, the Court granted a 10-day extension of time to comply with the Court's September 15, 2023 Order. (Doc. 43.)
On November 21, 2023, Plaintiff filed a response to the Court's Order to show cause requesting an extension of time to file a Notice of Substitution. (Doc. 45.) That same day, the Court issued an Order stating, “no later than 45 days from the date of this Order, Plaintiff shall file a notice of substitution substituting the actual names of Defendant Jane/John Doe TSU CO II and Defendant Jane/John Doe Deputy Warden. Failure to do so may result in dismissal of these Defendants.” (Doc. 48.) To date, Plaintiff has not responded and the time for doing so has expired.
III. Discussion
Rule 41(b) of the Federal Rules of Civil Procedure provides “[i]f the plaintiff fails to comply with these rules or any order of court, a defendant may move to dismiss the action or any claim against it.” 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. Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or hearing. See id. at 633.
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 v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “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, the first, second, and third factors favor dismissal of this case. Plaintiff's failure to follow Court Orders and file a Notice of Substitution, substituting Defendant Jane/John Doe TSU CO II and Defendant Jane/John Doe Deputy Warden's actual names as directed, prevents the case from proceeding against them in the foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to consider whether a less drastic alternative is available. The Court has already ordered Plaintiff to show cause why this matter should not be dismissed as to these Defendants, and Plaintiff has not complied.
The Court finds that only one less drastic sanction is realistically available. Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits “[u]nless the dismissal order states otherwise.” In the instant case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. Therefore, the Court will recommend dismissal of this action without prejudice as to Defendant Jane/John Doe TSU CO II and Defendant Jane/John Doe Deputy Warden pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Accordingly, IT IS RECOMMENDED that Plaintiff's Amended Complaint (doc. 24) be dismissed without prejudice as to Defendant Jane/John Doe TSU CO II and Defendant Jane/John Doe Deputy Warden pursuant to Fed.R.Civ.P. 41(b).
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. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.