Epperson v. Foreign Commonwealth Office, No. 1:2018cv01386 - Document 5 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissing Action for Failure to State a Claim and Failure to Prosecute that re 1 , 4 , signed by Magistrate Judge Stanley A. Boone on 11/30/18. Referred to Judge Drozd. Objections to F&R Due Within Thirty Days. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRIS JONATHAN EPPERSON, Plaintiff, 12 13 14 Case No. 1:18-cv-01386-DAD-SAB FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO STATE A CLAIM AND FAILURE TO PROSECUTE v. FOREIGN COMMONWEALTH OFFICE, et al., (ECF No. 1, 4) 15 Defendants. OBJECTIONS DUE WITHIN THIRTY DAYS 16 17 18 Chris Jonathan Epperson (“Plaintiff”), proceeding pro se, filed a complaint on October 9, 19 2018. (ECF No. 1.) Plaintiff’s complaint was screened and it was determined that Plaintiff 20 failed to state a cognizable claim. An order issued on October 18, 2018, providing Plaintiff with 21 thirty days in which to file an amended complaint. (ECF No. 4.) In the October 18, 2018 order, 22 Plaintiff was advised that if he failed to file an amended complaint, it would be recommended 23 that this action be dismissed for the reasons stated in the order. (Id. at 9.) More than thirty days 24 have passed and Plaintiff has not filed an amended complaint or otherwise responded to the 25 October 18, 2018 order. 26 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 27 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 28 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 1 1 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 2 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 3 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 4 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 5 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 6 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 7 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 8 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 9 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 10 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 11 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 12 of prosecution and failure to comply with local rules). Where a plaintiff fails to file an amended 13 complaint after being provided with leave to amend to cure the failure to state a claim, a district 14 court may dismiss the entire action. Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). 15 In determining whether to dismiss an action for failure to comply with a pretrial order, 16 the Court must weigh: “(1) the public’s interest in expeditious resolution of litigation; (2) the 17 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 18 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 19 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 20 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 21 1986). These factors guide a court in deciding what to do, and are not conditions that must be 22 met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 23 Litigation, 460 F.3d at 1226. 24 In this instance the public’s interest in expeditious resolution of the litigation and the 25 Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff was ordered to file 26 an amended complaint to cure the deficiencies that were identified in his complaint within thirty 27 days of October 18, 2018. Plaintiff has been provided with the legal standards that would apply 28 to his claims and the opportunity to file an amended complaint. Plaintiff has neither filed an 2 1 amended complaint nor otherwise responded to the Court’s order. Plaintiff’s failure to comply 2 with the orders of the Court hinders the Court’s ability to move this action towards disposition, 3 and indicates that Plaintiff does not intend to diligently litigate this action. 4 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 5 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 6 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of 7 dismissal. 8 The public policy in favor of deciding cases on their merits is greatly outweighed by the 9 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This 10 action can proceed no further without Plaintiff’s cooperation and compliance with the order at 11 issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. In this 12 instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 13 Finally, a court’s warning to a party that their failure to obey the court’s order will result 14 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 15 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s October 18, 2018 order 16 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 17 amended complaint in compliance with this order, the Court will recommend to the district judge 18 that this action be dismissed consistent with the reasons stated in this order.” (ECF No. 8 at 9:419 6.) Thus, Plaintiff had adequate warning that dismissal of this action would result from his 20 noncompliance with the Court’s order and his failure to state a claim. 21 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED for 22 Plaintiff’s failure to state a claim and failure to prosecute. 23 This findings and recommendations is submitted to the district judge assigned to this 24 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 25 days of service of this recommendation, Plaintiff may file written objections to this findings and 26 recommendations with the Court. Such a document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 28 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 3 1 Plaintiff is advised that failure to file objections within the specified time may result in the 2 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 3 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 Dated: November 30, 2018 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4