Guillen v. Schleicher

[8] UNITED STATES DISTRICT COURT [9] 10 EASTERN DISTRICT OF CALIFORNIA [11] GABRIEL MATTHEW GUILLEN, Case No. 1:23-cv-01722-KES-SAB [12] Plaintiff, FINDINGS AND RECOMMENDATIONS 13 RECOMMENDING DISMISSAL OF v. ACTION [14] TYLER SCHLEICHER, et al., (ECF No. 24) [15] Defendants. [16] 17 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 18 U.S.C. § 1983 . Following multiple screening orders, Plaintiff filed a second amended complaint 19 against on November 15, 2024. (ECF No. 9.) On December 9, 2024, the Court issued an order 20 authorizing service of Plaintiff’s second amended complaint and requiring Plaintiff to fill out and 21 return the USM-285 form and summonses for Defendants Tyler Schliecher, Edgar Galdamez, 22 and Jaime Orozco within thirty days. (ECF No. 23.) More than thirty days passed, and Plaintiff 23 did not comply with or otherwise respond to the December 9, 2024 order. The Court issued an 24 order to show cause directing Plaintiff to show cause in writing why this matter should not be 25 dismissed for failure to prosecute and failure to comply with a court order. (ECF No. 24.) The 26 Court was explicit that “Plaintiff is advised that failure to show cause in response to this 27 order will result in the recommendation this action being dismissed for failure to comply with a court order and failure to prosecute.” (Id. at p. 2) (emphasis in original). More than 1 fourteen days have passed, and Plaintiff has not complied with the January 21, 2025 order to 2 show cause. The Court will now recommend that this matter be dismissed for failure to 3 prosecute as well as failure to comply with the Court’s December 9, 2024 and January 21, 2025 4 orders. (ECF Nos. 23, 24.) 5 I. 6 DISCUSSION 7 Federal Rule of Civil Procedure 41(b) permits courts to involuntarily dismiss an action 8 when a litigant fails to prosecute an action or fails to comply with a court order. See Fed. R. Civ. 9 P. 41 (b); see also Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) 10 (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 11 2005) (“[T]he consensus among our sister circuits, with which we agree, is that courts may 12 dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Similarly, Local 13 Rule 110 permits courts to impose sanctions on a party who fails to comply with a court order. 14 Further, the procedural rules that govern this Court are to be “construed, administered and 15 employed by the court . . . to secure the just, speedy, and inexpensive determination of every 16 action and proceeding.” Fed. R. Civ. P. 1. 17 Before dismissing an action under Fed. R. Civ. P. 41, a court must consider: (1) the 18 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 19 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) 20 the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 890 (noting that 21 these five factors “must be considered” before a Rule 41 involuntarily dismissal); Malone v. U.S. 22 Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (reviewing the five factors and 23 independently reviewing the record because the district court did not make finding as to each). 24 But see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same but 25 noting the court need not make explicit findings as to each); Ferdik v. Bonzelet, 963 F.2d 1258 , 26 1260-61 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff did not 27 amend caption to remove “et al.” as the court directed and reiterating that an explicit finding of 1 Upon review of the above-stated factors, the Court finds dismissal of the action is 2 warranted. The expeditious resolution of litigation is deemed to be in the public interest. 3 Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). Turning to the second 4 factor, the Court’s need to efficiently manage its docket cannot be overstated. Given Plaintiff 5 has failed to respond to this order to show cause, the Court’s time is better spent on other matters 6 than needlessly consumed managing a case with a recalcitrant litigant.1 Indeed, “trial courts do 7 not have time to waste on multiple failures by aspiring litigants to follow the rules and 8 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., 9 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas 10 petition where the petitioner failed to timely respond to court order, noting “the weight of the 11 docket-managing factor depends upon the size and load of the docket, and those in the best 12 position to know what that is are our beleaguered trial judges”). Delays have the inevitable and 13 inherent risk that evidence will become stale or witnesses’ memories will fade or be unavailable 14 and can prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 15 U.S. 40, 57 (1968). The instant dismissal is a dismissal without prejudice, which is a lesser 16 sanction than a dismissal with prejudice, thereby addressing the fifth factor. 17 In sum, this case cannot linger indefinitely on this Court’s already overburdened docket. 18 A dismissal of this action for failure to prosecute and failure to comply with court orders is in 19 accord with Ninth Circuit precedent as well precedent governing Rule 41 dismissals. It appears 20 Plaintiff has abandoned this action, and Plaintiff’s failure to respond to the Court’s Order 21 warrants the sanction of dismissal without prejudice under the circumstances. 22 II. 23 ORDER AND RECOMMENDATIONS 24 Accordingly, it HEREBY RECOMMENDED that this case be dismissed without 25 prejudice for prosecute this action and/or comply with the Court’s order under Fed. R. Civ. P. 41 [26] 1 Plaintiff also failed to timely file a second amended complaint following a screening order from the Court. (ECF No. 17, 19.) This necessitated the Court issuing a previous findings and recommendations recommending that the 27 district judge dismiss the complaint (ECF No. 19) to which Plaintiff objected. (ECF No. 20.) Based on those objections, the Court vacated its findings and recommendations and allowed Plaintiff to file his second amended 1 | and Local Rule 110. 2 These Findings and Recommendations will be submitted to the United States District 3 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(). Within fourteen 4 | (14) days after being served with these Findings and Recommendations, Plaintiff may file 5 | written objections with the Court, limited to 15 pages in length, including exhibits. The 6 document should be captioned “Objections to Magistrate Judge’s Findings and 7 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 8 | may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th 9 | Cir. 2014), citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). [10] i IT IS SO ORDERED. FA. ee 12 | Dated: _ February 10, 2025 STANLEY A. BOONE 13 United States Magistrate Judge