Woodson v. Kern County Child Support Services, No. 1:2018cv00726 - Document 12 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice for Plaintiff's Failure to Comply with the Court's Order and Failure to Prosecute, signed by Magistrate Judge Jennifer L. Thurston on 11/14/2018. Referred to Chief Judge Lawrence J. O'Neill. Objections to F&R due within 14 days. (Hall, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON WOODSON, 12 Plaintiffs, 13 14 15 v. KERN COUNTY CHILD SUPPORT SERVICES, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-0726 -LJO-JLT FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER AND FAILURE TO PROSECUTE Jason Woodson is proceeding pro se and in forma pauperis with an action against Kern County 18 Child Support Services. Because Plaintiff has failed to comply with the Court’s order to file an 19 amended complaint and failed to prosecute the action, it is recommended the action be DISMISSED 20 without prejudice. 21 I. 22 Relevant Background Plaintiff initiated this action by filing a complaint on May 29, 2018. (Doc. 1) Because Plaintiff 23 sought to proceed in forma pauperis, the Court screened the complaint. (Docs. 2, 3) The Court 24 determined the facts alleged were not sufficient to support a claim arising under federal law and 25 dismissed the complaint with leave to amend on June 12, 2018. (Doc. 3) 26 On July 10, 2018, Plaintiff filed a notice of appeal, indicating he was appealing the Court’s 27 order dismissing his complaint with leave to amend. (Doc. 4) The Ninth Circuit determined it “lack[ed] 28 jurisdiction over this appeal because the order challenged in the appeal is not final or appealable.” 1 1 (Doc. 8 at 1, citing WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)) Therefore, 2 Plaintiff’s appeal was dismissed for lack of jurisdiction on August 21, 2018. (Id.) After the judgment of the Ninth Circuit took effect, the Court ordered Plaintiff to file an 3 4 amended complaint, as previously ordered, no later than October 22, 2018. (Doc. 10) Plaintiff was 5 advised that if he failed to file an amended complaint, then “the action may be dismissed for failure to 6 prosecute and failure to obey the Court’s order.” (Id. at 2, emphasis omitted) However, Plaintiff failed 7 to file an amended complaint or otherwise respond to the Court’s order. On October 23, 2018, the Court again informed Plaintiff that the action could be dismissed for 8 9 failure to comply with the Court’s order to file an amended complaint. (Doc. 11 at 1-2) Plaintiff was 10 ordered to show cause why sanctions should not be dismissed for the failure comply with the Court’s 11 order or and failure to prosecute. (Id. at 2) In the alternative, Plaintiff was directed to file an amended 12 complaint. (Id.) To date, Plaintiff has not responded to the Court’s orders or taken any other action to 13 prosecute this matter. 14 II. Failure to Prosecute and Obey the Court’s Orders The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 15 16 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 17 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 18 power to control their dockets,” and in exercising that power, a court may impose sanctions including 19 dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 20 1986). A court may dismiss an action for a party’s failure to prosecute an action or failure to obey a 21 court order. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure 22 to comply with an order to file an amended complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 23 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 24 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 25 III. 26 Discussion and Analysis To determine whether to dismiss an action for failure to prosecute and failure to obey a Court 27 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 28 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 2 1 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 2 of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; 3 Thomspon, 782 F.2d at 831. Public interest and the Court’s docket 4 A. 5 In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s 6 interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 7 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 8 dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 9 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 10 not hold, this case in abeyance based upon Plaintiff’s failure to comply with the Court’s order and 11 failure to take action to continue prosecution in a timely manner. See Morris v. Morgan Stanley & Co., 12 942 F.2d 648, 652 (9th Cir. 1991) (a plaintiff has the burden “to move toward… disposition at a 13 reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these factors weigh in 14 favor of dismissal of the action. 15 B. Prejudice to Defendant 16 To determine whether the defendant suffers prejudice, the Court must “examine whether the 17 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 18 the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th 19 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 20 prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiff 21 has not taken any action to further his prosecution of the action, despite being ordered by the Court to 22 do so. Therefore, this factor weighs in favor of dismissal. 23 C. Consideration of less drastic sanctions 24 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 25 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 26 Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, a court’s warning to a party that the 27 failure to obey could result in dismissal satisfies the “consideration of alternatives” requirement. See 28 Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth Circuit explained, “a plaintiff can 3 1 hardly be surprised” by a sanction of dismissal “in response to willful violation of a pretrial order.” 2 Malone, 833 F.2d at 133. The Court warned Plaintiff in the order directing him to file an amended complaint following 3 4 the dismissal of his appeal that “if he fails to comply with this order to file an amended complaint, the 5 action may be dismissed for failure to prosecute and failure to obey the Court’s order.” (Doc. 10 at 2, 6 emphasis in original) Again in the order to show cause, Plaintiff was advised that the Court “may 7 dismiss an action with prejudice, based on a party’s failure to prosecute an action or failure to obey a 8 court order, or failure to comply with local rules.” (Doc. 11 at 1) Importantly, the Court need only 9 warn a party once that the matter could be dismissed for failure to comply to satisfy the requirements of 10 Rule 41. Ferdik, 963 F.2d at 1262; see also Titus v. Mercedes Benz of North America, 695 F.2d 746, 11 749 n.6 (3rd Cir. 1982) (identifying a “warning” as an alternative sanction). Accordingly, the warnings 12 to Plaintiff satisfied the requirement that the Court consider lesser sanctions, and this factor weighs in 13 favor of dismissal of the action. See Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424; Titus, 695 14 F.2d at 749 n.6. 15 D. Public policy 16 Given Plaintiff’s failure to prosecute the action and failure to comply with the Court’s order, 17 the policy favoring disposition of cases on their merits is outweighed by the factors in favor of 18 dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring 19 disposition of cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the 20 other four factors”). 21 IV. 22 Findings and Recommendations Plaintiff failed to comply with the Court’s orders dated June 12, 2018 (Doc. 3); October 3, 2018 23 (Doc. 10); and October 23, 2018 (Doc. 11), and thereby failed to prosecute this action. According, the 24 Court RECOMMENDS: 25 1. This action be DISMISSED without prejudice; and 26 2. The Clerk of Court be DIRECTED to close the action. 27 These Findings and Recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 4 1 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 2 days after being served with these Findings and Recommendations, Plaintiffs may file written 3 objections. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 4 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 5 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 6 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 7 8 9 10 IT IS SO ORDERED. Dated: November 14, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5