Opinion
Case No. 1:17-cv-01068-AWI-BAM (PC)
05-31-2019
AUSTIN THOMAS, Plaintiff, v. I. LOZANO, et al., Defendants.
FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (ECF No. 11)
FOURTEEN (14) DAY DEADLINE
I. Background
Plaintiff Austin Thomas is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 8, 2019, the Court issued a screening order finding that Plaintiff had stated cognizable claims for excessive force in violation of the Eighth Amendment against Defendant Lozano and for failure to intervene in violation of the Eighth Amendment against Defendant Shirk, but failed to state any other claims against any other defendants. (ECF No. 11.) The Court ordered Plaintiff to either, within thirty days, file a second amended complaint or notify the Court in writing that he does not wish to file a second amended complaint and is willing to proceed only on the claims against Defendants Lozano and Shirk that the Court identified as cognizable. (Id. at 9.) The time for Plaintiff to either file a second amended complaint or a written notice of his willingness to proceed only on the claims found cognizable by the Court has expired, and Plaintiff has failed to either file a second amended complaint, a written notice, or otherwise communicate with the Court regarding this action.
II. Failure to Prosecute and Failure to Obey a Court Order
A. Legal Standard
Local Rule 110 provides that "[f]ailure . . . of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the inherent power of the Court." District courts have the inherent power to control their dockets and "[i]n the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal." Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130-33 (9th Cir. 1987) (dismissal for failure to comply with court order).
In determining whether to dismiss an action, the Court must consider several 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." Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
B. Discussion
In this case, Plaintiff has failed to comply with the Court's April 8, 2019 screening order and either file a second amended complaint or a written notice that he is willing to proceed only on the cognizable claims identified by the Court. Further, Plaintiff has not requested an extension of time to comply with the Court's April 8, 2019 screening order, or otherwise communicated with the Court regarding this action in any manner. Plaintiff's failure to continue prosecuting this action by obeying the Court's April 8, 2019 order is hindering this litigation from being resolved expeditiously and preventing the Court from effectively managing its docket. Therefore, the Court finds that both the first and second factors weigh in favor of dismissal.
The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, "this factor lends little support to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction[,]" which is the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation and internal quotation marks omitted). Thus, in this case, the fourth factor weighs in favor of dismissal.
Finally, the Court's warning to a party that failure to obey the court's order will result in dismissal satisfies the "considerations of the alternatives" requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court's April 8, 2019 screening order expressly warned Plaintiff that his failure to comply with the Court's order would result in a recommendation of dismissal of this action, without prejudice, for failure to obey a court order and for failure to prosecute. (ECF No. 11, at 10.) Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance.
Additionally, at this stage in the proceedings there is little available to the Court that would constitute a satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is likely to have no effect given that Plaintiff has ceased litigating this case. Therefore, the fifth factor also weighs in favor of dismissal.
III. Conclusion and Recommendation
Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY RECOMMENDS that this action be dismissed, without prejudice, for Plaintiff's failure to obey a court order and for Plaintiff's failure to prosecute this action.
These Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendation, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Plaintiff is advised that failure to file objections within the specified time may result in the waiver of the "right to challenge the magistrate's factual findings" on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: May 31 , 2019
/s/ Barbara A . McAuliffe
UNITED STATES MAGISTRATE JUDGE