(PS) Noel v. Unknown, No. 2:2018cv01687 - Document 4 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/30/18, RECOMMENDING that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and the Clerk be directed to vacate all date s and close this case. It is ORDERED that all pleading, discovery, and motion practice in this action are STAYED pending resolution of the findings and recommendations. Matter REFERRED to District Judge John A. Mendez. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)
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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 DEFRANTZE LUCAS NOEL, 12 Plaintiff, 13 14 No. 2:18-cv-01687-JAM-CKD (PS) v. ORDER AND FINDINGS AND RECOMMENDATIONS UNKNOWN, 15 Defendant. 16 Plaintiff DeFrantze Lucas Noel, who proceeds without counsel, commenced this action on 17 18 June 8, 2018 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 (ECF Nos. 1, 2.) The court granted this motion, but simultaneously dismissed the action because 20 the complaint did not state a claim under the American’s with Disabilities Act, and failed to name 21 any defendants or explain why the defendants’ names are neither known nor ascertainable 22 through reasonable inquiry. (See ECF No. 3.) The court ordered plaintiff to file either a first amended complaint or a notice of voluntary 23 24 dismissal of the action within twenty-eight days of June 14, 2018. (Id. at 4.) Plaintiff was 25 specifically cautioned that failure to timely comply with the order may result in a 26 recommendation that the action be dismissed with prejudice pursuant to Federal Rule of Civil 27 Procedure 41(b). (Id.) 28 //// 1 1 Although the applicable deadline has now passed, plaintiff has failed to file an amended 2 complaint or notice of voluntary dismissal with the court. Therefore, the court recommends 3 dismissal at this juncture. 4 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 5 with these Rules or with any order of the Court may be grounds for imposition by the Court of 6 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 7 Moreover, Eastern District Local Rule 183(a) provides, in part: 8 9 10 11 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. 12 13 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 14 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 15 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 16 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 17 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 18 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 19 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 20 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 21 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 22 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 23 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 24 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 25 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 26 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 27 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 28 may impose sanctions including dismissal or default). 2 1 A court must weigh five factors in determining whether to dismiss a case for failure to 2 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 3 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court 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. 4 5 6 7 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46 8 F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of 9 conditions precedent before the judge can do anything, but a way for a district judge to think 10 about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 11 (9th Cir. 2006). 12 Although involuntary dismissal can be a harsh remedy, on balance the five relevant 13 factors weigh in favor of dismissal here. The first two Ferdik factors strongly support dismissal, 14 given that plaintiff’s failure to comply with the court’s order and failure to prosecute his case 15 have unreasonably delayed the progress of this litigation. The third Ferdik factor also favors 16 dismissal. While no defendant has appeared or even been properly identified, plaintiff does 17 attempt to raise claims against the owners of the apartment complex where plaintiff resides. (See 18 ECF No. 1.) Plaintiff’s failure to prosecute the case has hampered these unknown defendants’ 19 ability to move this case forward towards resolution 20 Additionally, the fifth Ferdik factor, which considers the availability of less drastic 21 measures, also supports dismissal. As noted above, the court has already attempted less drastic 22 measures—allowing plaintiff an opportunity to amend his complaint—prior to recommending 23 dismissal. However, plaintiff failed to file an amended complaint or otherwise respond to the 24 court’s order. Furthermore, the court finds no suitable alternative to dismissal at this juncture. 25 Given plaintiff’s in forma pauperis status and his failure to properly name defendants or state a 26 cognizable claim, the imposition of monetary sanctions would be futile, and the court is unable to 27 frame any meaningful issue or evidentiary sanctions based on the limited record before it. 28 //// 3 1 Finally, the court finds that the fourth Ferdik factor, which addresses the public policy 2 favoring disposition of cases on the merits, does not materially counsel against dismissal. If 3 anything, a disposition on the merits has been hindered by plaintiff’s own failure to comply with 4 the court’s order and prosecute his case. In any event, the court finds that the fourth Ferdik factor 5 is outweighed by the other Ferdik factors. 6 Consequently, dismissal is appropriate. 7 Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. The action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 9 41(b). 10 2. The Clerk of Court be directed to vacate all dates and close this case. 11 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 12 discovery, and motion practice in this action are STAYED pending resolution of the findings and 13 recommendations. With the exception of objections to the findings and recommendations and 14 any non-frivolous motions for emergency relief, the court will not entertain or respond to any 15 motions and other filings until the findings and recommendations are resolved. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 18 days after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 21 shall be served on all parties and filed with the court within fourteen (14) days after service of the 22 objections. The parties are advised that failure to file objections within the specified time may 23 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 24 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 25 Dated: July 30, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 26 27 28 14/ps.18-1687.Noel v. Unknown.f&r 41b dismissal 4