(PS) Singh v. County of Sacramento et al, No. 2:2014cv02382 - Document 12 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 02/17/16 RECOMMENDING this action dismissed with prejudice pursuant to FRCP 41(b). Referred to Judge John A. Mendez; Objections due within 14 days after being served with these findings and recommendations. Any reply to the objections shall be served on all parties and filed with the court within 14 days after service of the objections. (Jackson, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 No. 2:14-cv-2382-JAM-KJN PS RAJ SINGH, FINDINGS AND RECOMMENDATIONS v. COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 Through these findings and recommendations, the undersigned recommends that 17 18 plaintiff’s case be dismissed with prejudice. Plaintiff repeatedly failed to comply with the court’s 19 orders granting plaintiff leave to amend his defective pleadings by filing multiple amended 20 complaints containing virtually the same allegations as those found to be defective in his prior 21 pleadings. Plaintiff engaged in this practice despite having been repeatedly provided both with 22 notice of the multitude of deficiencies in his allegations and multiple warnings that his continued 23 filing of amended pleadings virtually the same as his prior flawed pleadings would result in a 24 recommendation that this action be dismissed with prejudice. Accordingly, for the reasons 25 described below, the undersigned recommends that plaintiff’s case be dismissed with prejudice 26 pursuant to Federal Rule of Civil Procedure 41(b). 27 //// 28 //// 1 1 I. BACKGROUND 2 Plaintiff, who is proceeding without counsel, filed the original complaint and an 3 application to proceed in forma pauperis on October 9, 2014.1 (ECF Nos. 1, 2.) On April 10, 4 2015, the court granted plaintiff’s application to proceed in forma pauperis, but also dismissed his 5 complaint without prejudice based on a number of deficiencies the court outlined in its order. 6 (ECF No. 3.) The undersigned gave plaintiff leave to file an amended pleading (Id.), and plaintiff 7 subsequently filed a First Amended Complaint in response to the court’s order. (ECF No. 4.) 8 The court subsequently determined that the First Amended Complaint also contained many of the 9 same deficiencies the court highlighted with respect to the original complaint. (ECF No. 7.) 10 Nevertheless, in light of the fact that plaintiff attempted to remedy at least some of the original 11 complaint’s inadequacies, the court again granted plaintiff leave to amend his complaint a second 12 time. (Id.) 13 On November 6, 2015, plaintiff filed a Second Amended Complaint. (ECF No. 9.) 14 However, this complaint was also dismissed because, aside from a few largely superficial 15 changes, it contained verbatim the same allegations as those found deficient in the First Amended 16 Complaint. (ECF No. 10.) Nevertheless, despite plaintiff’s apparent lack of a good faith attempt 17 to rectify the deficiencies the court had repeatedly highlighted for him, the court granted plaintiff 18 one final opportunity to file an amended complaint that addressed the multitude of deficiencies in 19 his allegations. (Id.) Furthermore, the court provided plaintiff with the following admonition: 20 Plaintiff is cautioned that filing another complaint with virtually the same allegations as the original complaint, First Amended Complaint, and/or the Second Amended Complaint will cause the court to issue sanctions including, but not limited to, a recommendation that this entire action be dismissed with prejudice. Similar sanctions will issue if the Third Amended Complaint does not otherwise address the fundamental deficiencies in plaintiff’s current allegations that the court has already repeatedly highlighted through its previous orders. 21 22 23 24 25 (Id. at 4 (emphasis in original).) 26 //// 27 28 1 This case proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 2 1 On December 23, 2015, plaintiff filed a Third Amended Complaint. (ECF No. 11.) 2 However, a review of that pleading demonstrates that the allegations contained therein are 3 effectively the same as those contained in the previously-dismissed Second Amended Complaint. 4 (Compare ECF No. 9 with ECF No. 11.) Indeed, the Third Amended Complaint is even titled 5 “Second Amended Complaint for Damages.” (ECF No. 11 at 1.) The only difference between 6 these two pleadings that the court is aware of is that the Third Amended Complaint is also signed 7 by Karen Singh, a purported second plaintiff to this action. Outside of this inclusion, the 8 allegations of the Third Amended Complaint are word-for-word identical to those contained in 9 the Second Amended Complaint, and contain the exact same deficiencies highlighted by the 10 court’s three previous orders issued in this action. Despite the court’s warning that it would 11 recommend that this case be dismissed with prejudice if plaintiff’s Third Amended Complaint 12 contained virtually the same allegations as those contained in his Second Amended Complaint, 13 plaintiff has filed a third amended pleading that clearly appears to flagrantly disregard that order. 14 II. 15 LEGAL STANDARDS A court must weigh five factors in determining whether to dismiss a case for failure to 16 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 17 rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Specifically, the court 18 must consider: (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 alternatives. 19 20 21 22 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali v. 23 Moran, 46 F.3d 52, 53 (9th Cir. 1995). The Ninth Circuit Court of Appeals has stated that 24 “[t]hese factors are not a series of conditions precedent before the judge can do anything, but a 25 way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods. 26 Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 27 //// 28 //// 3 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 1 2 with these Rules or with any order of the Court may be grounds for imposition by the Court of 3 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 4 Moreover, Eastern District Local Rule 183(a) provides, in part: 5 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules. 6 7 8 9 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 10 same rules of procedure that govern other litigants”) (overruled on other grounds). Case law is in 11 accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff’s 12 case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his 13 or her case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the 14 court’s local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a 15 court “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 16 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss 17 an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to 18 prosecute or comply with the rules of civil procedure or the court’s orders); Ghazali, 46 F.3d at 53 19 (“Failure to follow a district court’s local rules is a proper ground for dismissal”); Ferdik, 963 20 F.2d at 1260 (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 21 an action for failure to comply with any order of the court”); Thompson v. Housing Auth. of City 22 of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent 23 power to control their dockets and may impose sanctions including dismissal or default). 24 25 III. DISCUSSION Although involuntary dismissal can be a harsh remedy, on balance the five relevant Ferdik 26 factors weigh in favor of dismissal of this action. See Ferdik, 963 F.2d at 1260. The first two 27 Ferdik factors strongly support dismissal here. Plaintiff’s multiple failures to file an amended 28 pleading that addresses the deficiencies in his allegations repeatedly highlighted by the court and 4 1 apparent disregard for the court’s orders directing him not to file pleadings that are virtually 2 indistinguishable from those that have been previously dismissed, despite a clear warning of the 3 consequences for doing so (ECF Nos. 10 at 4), strongly suggest that plaintiff is not interested in 4 seriously prosecuting this case in good faith, or at least, does not take his obligations to the court 5 and other parties seriously. See, e.g., Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 6 1999) (“The public’s interest in expeditious resolution of litigation always favors dismissal”). 7 Any further time spent by the court on this case, for which plaintiff has demonstrated a lack of 8 any serious intention to pursue in good faith, will consume scarce judicial resources and take 9 away from other active cases. See Ferdik, 963 F.2d at 1261 (recognizing that district courts have 10 11 inherent power to manage their dockets without being subject to noncompliant litigants). Furthermore, this is not plaintiff’s first failure to comply with a court order. This is the 12 fourth occasion on which plaintiff has filed a defective pleading in this action, and the third time 13 he has done so with allegations that are virtually unchanged after being advised that they contain 14 multiple fundamental deficiencies. Despite receiving warnings to not file pleadings materially 15 indistinguishable from prior defective complaints and having had multiple chances to amend his 16 complaint to provide allegations that give rise to a cognizable cause of action, plaintiff’s failures 17 to comply with the court’s orders demonstrate plaintiff’s lack of any serious intention to pursue 18 this case in a good faith manner. See Ferdik, 963 F.2d at 1261. 19 The third Ferdik factor, prejudice to a defendant, also favors dismissal. Due to the defects 20 that continue to remain within plaintiff’s operative pleading, service of process upon the 21 defendants named in this action has not been ordered. Nevertheless, the defendants remain 22 named in a lawsuit. It is difficult to quantify the prejudice suffered by the defendants here; 23 however, it is enough that the defendants have been named in litigation that plaintiff has 24 effectively been unwilling to pursue in good faith, which is demonstrated through his clear 25 unwillingness to make all but the most minimal attempts to correct the deficiencies in his 26 allegations and blatant disregard of court orders. At a minimum, plaintiff’s unreasonable delay in 27 prosecuting this action via his filing of multiple nearly identical pleadings has prevented the 28 defendants from attempting to resolve this case on the merits. Unreasonable delay is presumed to 5 1 be prejudicial. See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at 1227. 2 The fifth Ferdik factor, which considers the availability of less drastic measures, also 3 supports dismissal of this action. As noted above, the court has actually pursued remedies that 4 are less drastic than a recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 5 128, 132 (9th Cir. 1987) (“[E]xplicit discussion of alternatives is unnecessary if the district court 6 actually tries alternatives before employing the ultimate sanction of dismissal”). For instance, the 7 court gave plaintiff multiple opportunities to amend his defective pleading, each time highlighting 8 the deficiencies in his allegations. (ECF Nos. 4, 7, 10.) The court also repeatedly advised 9 plaintiff that he was required to make more substantive amendments to his complaint and follow 10 the court’s orders to not file amended pleadings that are virtually the same as those previously 11 filed and dismissed. (Id.) It also warned plaintiff in plain terms that failure to comply with court 12 orders and failure to file an amended pleading that did not contain defective allegations that were 13 word-for-word the same as those previously dismissed would result in a recommendation of 14 dismissal. (ECF No. 10 at 4.) Warning a plaintiff that failure to take appropriate steps towards 15 resolution of his or her action will cause the action to be dismissed satisfies the requirement that 16 the court consider alternative measures. See, e.g., Ferdik, 963 F.2d at 1262 (“[O]ur decisions also 17 suggest that a district court’s warning to a party that his failure to obey the court’s order will 18 result in dismissal can satisfy the ‘consideration of alternatives’ requirement”) (citing Malone, 19 833 F.2d at 132-33). 20 At this juncture, the court finds no suitable alternative to a recommendation that this 21 action be dismissed. Plaintiff failed to file an amended pleading despite having multiple chances 22 to do so (ECF Nos. 3, 7, 10), and in light of plaintiff’s in forma pauperis status, the court has little 23 confidence that plaintiff would pay monetary sanctions if they were imposed in lieu of dismissal. 24 Most recently, plaintiff disregarded the court’s order and filed an amended pleading that verbatim 25 mirrored the defective allegations contained in his Second Amended Complaint even though the 26 court explicitly warned him that taking such a course of action would result in a recommendation 27 that this case be dismissed. (ECF No. 10 at 4.) 28 //// 6 1 The court also recognizes the importance of giving due weight to the fourth Ferdik factor, 2 which addresses the public policy favoring disposition of cases on the merits. However, for the 3 reasons set forth above, factors one, two, three, and five support a recommendation of dismissal 4 of this action, and factor four does not materially counsel otherwise. Dismissal is proper “where 5 at least four factors support dismissal or where at least three factors ‘strongly’ support dismissal.” 6 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks 7 omitted). Under the circumstances of this case, the other relevant factors outweigh the general 8 public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263. If 9 anything, a disposition on the merits has been hindered by plaintiff’s repeated failures to comply 10 with the court’s orders and the rules of litigation procedure. 11 In sum, the court endeavors to give pro se litigants who are unfamiliar with court 12 procedures a fair opportunity to present their cases. As such, the court has given plaintiff several 13 opportunities to amend his defective pleading. Yet plaintiff did not seize upon these 14 opportunities, and decided instead to flagrantly disregard the court’s orders by filing amended 15 complaints that effectively mimicked those that the court previously dismissed due to multiple 16 deficiencies. The court has also provided plaintiff with cautionary instructions and afforded 17 plaintiff some leniency with respect to the litigation. However, at some point, leniency must give 18 way to considerations of limited court resources and fairness to the other litigants. 19 20 21 IV. CONCLUSION For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 1. This action be dismissed with prejudice pursuant to Federal Rule of Civil 22 Procedure 41(b). 23 2. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 26 days after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections The Clerk of Court be directed to close this case and vacate all dates. 7 1 shall be served on all parties and filed with the court within fourteen (14) days after service of the 2 objections. The parties are advised that failure to file objections within the specified time may 3 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 4 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 5 6 IT IS SO RECOMMENDED. Dated: February 17, 2016 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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