(PC) Miller v. Reyes

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JAMAL EZEKIAL ISIAH MILLER, Case No. 1:23-cv-00450-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT PREJUDICE 14 REYES, RODRIGUEZ, GUERRA, FOR FAILURE TO EXHAUST AGUAYO, SINGLETON, and ADMINISTRATIVE REMEDIES AND FOR 15 TADAREZ, FAILURE TO PROSECUTE1 16 Defendants. FOURTEEN-DAY OBJECTION PERIOD 17 (Doc. Nos. 13) [18] 19 This matter came before the Court upon review of the file. As set forth below, the 20 undersigned recommends this case be dismissed without prejudice due to Plaintiff’s failure to 21 exhaust his administrative remedies fully and properly before initiating the lawsuit as admitted on 22 the face of the Complaint, or alternatively for failure to prosecute this action and timely comply 23 with a Court order. (Doc. No. 13). 24 BACKGROUND AND FACTS 25 Plaintiff Jamal Ezekial Isiah Miller, a state prisoner, initiated this action by filing a pro se [26] 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302 27 (E.D. Cal. 2022). [28] 1 civil rights complaint under 42 U.S.C. § 1983 , which was transferred to this Court on March 24, 2 2023. (Doc. Nos. 1, 8). On May 9, 2023, after screening the complaint, the Court entered an 3 order directing Plaintiff to show cause why the action should not be dismissed for failure to 4 exhaust administrative remedies prior to initiating the lawsuit. (Doc. No. 13, “Order to Show 5 Cause”). Plaintiff was directed to file a response within fourteen days of receiving the order. (Id. 6 at 2-3, ¶1). The Court advised Plaintiff that he could alternatively file a notice of voluntary 7 dismissal. (Id.). Finally, Plaintiff was advised that his failure to timely respond to the order 8 would result in a recommendation that this case be dismissed for Plaintiff’s failure to exhaust his 9 administrative remedies and/or prosecute his action. (Id. at 3, ¶2). As of the date on these 10 Findings and Recommendations, Plaintiff has not filed a response to the Order to Show Cause 11 and the time to do so has lapsed.2 12 APPLICABLE LAW AND ANALYSIS 13 A. Failure to Exhaust Administrative Remedies 14 As noted in the Court’s Order to Show Cause, Plaintiff acknowledges on the face of his 15 Complaint that he did not complete the administrative process before filing the lawsuit. (Doc. 16 No. 1 at 1). Plaintiff was directed to address the exhaustion issue by responding to the Court’s 17 Order to Show Cause and did not do so. 18 Courts may dismiss a claim if failure to exhaust is clear on the face of the complaint. 19 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). The Prison Litigation Reform Act of 1995 20 requires: 21 No action shall be brought with respect to prison conditions under section 12983 of this title, or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as available are exhausted. [23] 24 42 U.S.C. § 1997e(a); see also Ross v. Blake, 578 U.S. 632, 635 (2016). The availability of 25 administrative remedies must be assessed at the time the prisoner filed his action. See Andres v. 26 Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017); see also Saddozai v. Davis, 35 F.4th 705 (9th Cir. [27] 2 As of the date of these Findings and Recommendations 34 days have elapsed, providing 28 Plaintiff with an additional 20 days for mailing. 1 2022) (noting a plaintiff could supplement or amend his or her complaint after he or she exhausts 2 his administrative remedies). 3 The exhaustion procedures set forth by the California Department of Correction and 4 Rehabilitation (“CDCR”) requires an inmate to proceed through three formal levels of review 5 unless otherwise excused under the regulation to exhaust available remedies. See generally Cal. 6 Code Regs. tit. 15 § 3480-3486.3 (2020). Plaintiff admits on his Complaint form that he did not 7 complete the grievance process for the claim at issue. (See Doc. No. 1 at 1). More specifically, 8 in the section of the complaint form documenting the steps Plaintiff has taken to pursue his 9 administrative remedies, Plaintiff states he submitted an initial grievance but was told it was lost, 10 and then re-submitted the grievance but he has not yet received a response. (Id.). The sections of 11 the form where Plaintiff may describe the second and third steps of the grievance process are left 12 blank. (Id. at 2). If a court concludes that a prisoner failed to exhaust his available administrative 13 remedies before filing a civil rights action, the proper remedy is dismissal without prejudice. See 14 Jones v. Bock, 549 U.S. 199, 223-24 (2007); Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 15 2005). Thus, based on the face of the complaint, this action should be dismissed without 16 prejudice due to Plaintiff’s failure to exhaust administrative remedies fully and properly before 17 initiating this lawsuit. See Albino, 747 F.3d at 1166 (noting a court can also dismiss a case at 18 screening “[i]n the rare event that a failure to exhaust is clear on the face of the complaint.”). 19 B. Failure to Prosecute and/or Comply with a Court Order 20 Alternatively, Federal Rule of Civil Procedure 41(b) permits the court to involuntarily 21 dismiss an action when a litigant fails to prosecute an action or fails to comply with other Rules 22 or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 23 F.3d 884, 889 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which 24 correspond with Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to 25 comply with … any order of the Court may be grounds for the imposition by the Court of any and 26 all sanctions … within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts 27 have inherent power to control their dockets” and, in exercising that power, may impose 28 sanctions, including dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 1 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to 2 prosecute an action, obey a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, [3] 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a court order to 4 amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) 5 (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421 , 1424 6 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). In determining 7 whether to dismiss an action, the Court must consider the following factors: (1) the public’s 8 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the 9 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 10 merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 1423 ; Carey v. 11 King, 856 F.2d 1439, 1440 (9th Cir. 1988). 12 After considering each of the above-stated factors, the undersigned concludes dismissal 13 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 14 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 15 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 16 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 17 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 18 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates 19 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 20 Emergency in the Eastern District of California. This Court’s time is better spent on its other 21 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 22 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 23 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 24 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 25 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 26 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 27 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 28 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 2 the third factor weighs in favor of dismissal. 3 The fourth factor usually weighs against dismissal because public policy favors the 4 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 5 However, “this factor lends little support to a party whose responsibility it is to move a case 6 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 7 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217 , 8 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 9 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 10 Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of 11 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 12 timely respond to court order and noting “the weight of the docket-managing factor depends upon 13 the size and load of the docket, and those in the best position to know what that is are our 14 beleaguered trial judges.”). Further, as set forth in the Order to Show Cause, the Court already 15 determined that the Complaint was filed before Plaintiff exhausted his administrative remedies, so 16 this factor does not weigh in favor of Plaintiff. 17 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 18 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262 ; 19 Malone, 833 F.2d at 132-33 ; Henderson, 779 F.2d at 1424 . The Order to Show Cause expressly 20 warned Plaintiff that his failure to respond would result in a recommendation that the district 21 court dismiss this action. (Doc. 13 at 3, ¶2). Thus, Plaintiff had adequate warning that dismissal 22 could result from his noncompliance. And the instant dismissal is a dismissal without prejudice, 23 which is a lesser sanction than a dismissal with prejudice, thereby satisfying the fifth factor. 24 After considering the factors set forth supra and binding case law, the undersigned 25 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rule 110. 26 Accordingly, it is ORDERED: 27 The Clerk of Court is directed to randomly assign a district judge to this case. 28 //// 1 Further, it is RECOMMENDED: 2 1. This case be dismissed without prejudice for Plaintiff's failure to exhaust his 3 | administrative remedies before initiating the instant action. 4 2. The case be dismissed without prejudice for failure to prosecute this action and/or 5 | comply with the Court’s orders under Fed. R. Civ. P. 41(b) and Local Rule 110. 6 NOTICE TO PARTIES 7 These findings and recommendations will be submitted to the United States district judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen (14) 9 | days after being served with these findings and recommendations, a party may file written 10 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 11 | Findings and Recommendations.” Parties are advised that failure to file objections within the 12 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 13 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [14] | Dated: _ June 12,2023 Mihaw. Mh. Bareh Zaskth 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE