(PS) Blackshire v. City of Sacramento, et al., No. 2:2017cv01531 - Document 6 (E.D. Cal. 2017)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS (F&R) signed by Magistrate Judge Kendall J. Newman on 12/12/2017 RECOMMENDING that this action be dismissed and the Clerk of Court be directed to close this case. In light of the recommendations, IT IS HEREBY ORDERED that all pleading, discovery, and motion practice are STAYED pending resolution of the F&R. With the exception of objections to the F&R and any non-frivolous motions for emergency relief, the court will not entertain or respond to any motions and other filings until the F&R are resolved. Referred to District Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (York, M)
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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 PATRICK BLACKSHIRE No. 2:17-cv-1531-MCE-KJN PS 12 Plaintiff, 13 14 15 ORDER AND v. FINDINGS AND RECOMMENDATIONS CITY OF SACRAMENTO, et al., 16 Defendants. 17 18 19 On September 26, 2017, the court denied plaintiff’s motion to proceed in forma pauperis, 20 and provided plaintiff with 28 days to either pay the filing fee or file a properly-completed motion 21 to proceed in forma pauperis. (ECF No. 4.) Plaintiff was cautioned that failure to timely comply 22 with the order may result in dismissal of the action pursuant to Federal Rule of Civil Procedure 23 41(b). (Id.) 24 Plaintiff ultimately failed to pay the filing fee, nor did he file a properly-completed 25 motion to proceed in forma pauperis by the applicable deadline. As such, the court considered 26 whether the action should be dismissed. Nevertheless, in light of plaintiff’s pro se status, and the 27 court’s desire to resolve the action on the merits, the court first attempted lesser, monetary 28 sanctions. Accordingly, on October 31, 2017, the court ordered plaintiff, within 21 days, to: 1 1 (1) pay $100.00 in monetary sanctions based on his failure to comply with the court’s orders and 2 failure to prosecute the case, and (2) either pay the filing fee or file a properly-completed motion 3 to proceed in forma pauperis. (ECF No. 5.) In the alternative, if plaintiff concluded that he no 4 longer wishes to pursue the action, he was permitted to file a notice of voluntary dismissal of the 5 action without prejudice within 21 days, in lieu of paying the sanctions. (Id.) Plaintiff was 6 expressly cautioned that failure to timely comply with the court’s order would result in dismissal 7 of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). (Id.) 8 Although the applicable deadline has now passed, and despite the court’s clear 9 admonitions, plaintiff again entirely failed to respond to the court’s order. Therefore, at this 10 juncture, the court has little choice but to recommend dismissal of the action pursuant to Federal 11 Rule of Civil Procedure 41(b) for failure to comply with court orders and failure to prosecute the 12 action. 13 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 14 with these Rules or with any order of the Court may be grounds for imposition by the Court of 15 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 16 Moreover, Eastern District Local Rule 183(a) provides, in part: 17 18 19 20 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. 21 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 22 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 23 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 24 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 25 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 26 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 27 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 28 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 2 1 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 2 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 3 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 4 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 5 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 6 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 7 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 8 may impose sanctions including dismissal or default). 9 A court must weigh five factors in determining whether to dismiss a case for failure to 10 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 11 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 12 13 14 15 16 (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. Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). Here, the first two factors weigh in favor of dismissal, because this case has already been 17 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 18 factor also slightly favors dismissal, because, at a minimum, defendants have been deprived of an 19 opportunity to be promptly notified of the lawsuit and prepare their defense. With the passage of 20 time, witnesses’ memories fade and evidence becomes stale. 21 Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal, 22 because the court has already attempted less drastic alternatives. More specifically, the court, 23 cognizant of plaintiff’s pro se status, declined to initially dismiss the case, but instead imposed 24 minimal monetary sanctions. The court also clearly cautioned plaintiff regarding the potential 25 consequences of any continued failure to comply with the court’s orders. Additionally, given 26 plaintiff’s initial request to proceed in forma pauperis and his complete failure to respond to the 27 court’s orders, the court is not convinced that plaintiff could or would pay any increased 28 monetary sanctions if they were ordered. 3 1 Finally, as to the fourth factor, the public policy favoring disposition of cases on their 2 merits, that factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to 3 prosecute the case and comply with court orders that precludes a resolution on the merits. 4 5 Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate. 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. 8 2. The Clerk of Court be directed to close this case. 9 In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading, The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 10 discovery, and motion practice in this action are stayed pending resolution of the findings and 11 recommendations. With the exception of objections to the findings and recommendations and 12 any non-frivolous motions for emergency relief, the court will not entertain or respond to any 13 motions and other filings until the findings and recommendations are resolved. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 16 days after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 19 shall be served on all parties and filed with the court within fourteen (14) days after service of the 20 objections. The parties are advised that failure to file objections within the specified time may 21 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 22 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 23 24 IT IS SO ORDERED AND RECOMMENDED. Dated: December 12, 2017 25 26 27 28 4
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