(PC) Carter v. United States

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA TERRANCE MACK CARTER, Case No. 1:23-cv-00352-KJM-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT PREJUDICE1 13 v. 14-DAY DEADLINE UNITED STATES OF AMERICA, 15 Defendants.

17 Plaintiff Terrance Mack Carter is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action. For the reasons set forth below, the undersigned recommends that the District Court dismiss this action without prejudice for Plaintiff’s failure to comply with a court order and prosecute this action.

21 BACKGROUND 22 Plaintiff initiated this action by filing a civil rights complaint under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 in the Southern District of California. (Doc. No. 1, “Complaint”). On September 22, 2023, the District Court adopted the undersigned’s Findings and Recommendations in full and granted Defendant’s Motion to Dismiss but granted Plaintiff leave to file a second amended complaint (“SAC”) within twenty-one (21) from service of the This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2023).

1 order. (Doc. Nos. 39, 40). The Court granted Plaintiff three extensions of time to file a SAC.

2 (Doc. Nos. 42, 45, 48). In its last order dated April 19, 2024,2 Plaintiff was directed to deliver his SAC to correctional officials for mailing no later than May 24, 2024. (Id. at 2, ¶2).

4 In its prior orders, the Court expressly warned Plaintiff that if he fails to timely comply with its orders, the undersigned will recommend that the district court dismiss this case due to Plaintiff’s failure to comply with a court order and prosecute his case. (Doc. No. 42 at 2 ¶ 3; Doc.

7 No. 48 at 2 ¶ 2). As of the date of this of these Findings and Recommendations, Plaintiff has failed to submit a second amended complaint, or request a further extension of time to comply, and the time to do so has expired. (See docket.)

10 APPLICABLE LAW AND ANALYSIS 11 A. Legal Standard 12 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . .

17 any order of the Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control their dockets” and, in exercising that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). In determining whether to dismiss an action, the In an abundance of caution due to Plaintiff’s change of address, the Court sua sponte granted Plaintiff a further extension of time. (Doc. No. 48).

1 Court must consider the following factors: (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 sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

6 B. Analysis 7 After considering each of the above-stated factors, the undersigned concludes dismissal without prejudice is warranted in this case. As to the first factor, the expeditious resolution of litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999).

11 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in filling judicial vacancies, which was further exacerbated by the COVID-19 pandemic, operates under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial Emergency in the Eastern District of California. This Court’s time is better spent on its other matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court order. Thus, the Court finds that the second factor weighs in favor of dismissal.

19 Delays inevitably have the inherent risk that evidence will become stale, or witnesses’ memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice to defendant—weighs in favor of dismissal since a presumption of injury arises from the unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, the third factor weighs in favor of dismissal.

26 The fourth factor usually weighs against dismissal because public policy favors the disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002).

28 However, “this factor lends little support to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and requirements of our courts.”

5 Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to timely respond to court order and noting “the weight of the docket-managing factor depends upon the size and load of the docket, and those in the best position to know what that is are our beleaguered trial judges.”).

9 Finally, the Court’s warning to a party that failure to obey the court’s order will result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s October 17, 2023 and April 19, 2024 Orders expressly warned Plaintiff that his failure to respond to the Court’s Order would result in a recommendation of dismissal of this action. (Doc. No. 42 at 2 ¶ 3; Doc. No. 48 at 2 ¶ 2). Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance. And the instant dismissal is a dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby satisfying the fifth factor.

17 After considering the factors set forth supra and binding case law, the undersigned recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110.

19 Accordingly, it is hereby RECOMMENDED: 20 This action be DISMISSED without prejudice for Plaintiff’s failure to obey court orders and failure to prosecute.

22 NOTICE TO PARTIES 23 These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with a copy of these Findings and Recommendations, a party may file written objections with the Court. Id.; Local Rule 304(b). The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge will review these Findings and Recommendations under 28 U.S.C. § 636(b)(l)(C). A party’s | failure to file objections within the specified time may result in the waiver of certain rights on | appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). “| Dated: _ June 21,2024 Wile. Lh fareh Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE