# (PC) Brown v. Sherman

> District Court, E.D. California · October 16, 2023

URL: https://www.frixlaw.com/law-library/cases/10056423

## Case

- **Court:** District Court, E.D. California
- **Decided:** October 16, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 LEON BROWN, Case No.: 1:21-cv-01327 CDB (PC)
12 Plaintiff,
FINDINGS AND RECOMMENDATIONS TO
13 v. DISMISS ACTION FOR PLAINTIFF’S
FAILURE TO OBEY COURT ORDERS AND
14 STUART SHERMAN, et al., FAILURE TO PROSECUTE

15 Defendants. 14-DAY OBJECTION DEADLINE

16 Clerk of the Court to Assign District Judge

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18 Plaintiff Leon Brown is proceeding pro se and in forma pauperis in this civil rights action
19 pursuant to 42 U.S.C. § 1983.
20 I. RELEVANT PROCEDURAL BACKGROUND
21 The Court issued its First Screening Order on January 13, 2023. (Doc. 11.) The Court
22 determined Plaintiff had failed to state an Eighth Amendment claim upon which relief could be
23 granted as to named Defendants Sherman and Lopez. (Id. at 4-8.) Plaintiff was granted leave to
24 file a first amended complaint. (Id. at 8-9.)
25 Plaintiff timely filed a first amended complaint on February 23, 2023, asserting an Eighth
26 Amendment claim against Defendant Lopez. (Doc. 14.)
27 On September 13, 2023, the Court issued its Second Screening Order. (Doc. 15.) Again
1 (Id. at 4-9.) Plaintiff was given a final opportunity to amend his complaint, curing the deficiencies
2 identified in the order, and was directed to file a second amended complaint, or alternatively, a
3 notice of voluntary dismissal, within 21 days of the date of service of the order. (Id. at 9-10.)
4 More than 21 days have passed, and Plaintiff has failed to file a second amended complaint or a
5 notice of voluntary dismissal.
6 II. DISCUSSION
7 A. Legal Standard
8 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide,
9 “[f]ailure of counsel or of a party to comply with … any order of the Court may be grounds for
10 the imposition by the Court of any and all sanctions … within the inherent power of the Court.”
11 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising
12 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth.,
13 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a
14 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g.,
15 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a
16 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir.
17 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,
18 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).
19 In determining whether to dismiss an action, the Court must consider several factors:
20 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
21 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
22 cases on their merits; and (5) the availability of less drastic sanctions. Carey v. King, 856 F.2d
23 1439, 1440 (9th Cir. 1988).
24 B. Analysis
25 Here, Plaintiff has failed to file a second amended complaint or, alternatively, a notice of
26 voluntary dismissal. The Court cannot effectively manage its docket if Plaintiff ceases litigating
27 his case. Thus, the Court finds that both the first and second factors—the public’s interest in
1 dismissal. Carey, 856 F.2d at 1440.
2 The third factor weighs in favor of dismissal since a presumption of injury arises from the
3 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524
4 (9th Cir. 1976). Here, the Court’s Second Screening Order directed Plaintiff to file a second
5 amended complaint or a notice of voluntary dismissal within 21 days. (See Doc. 15 at 9-10.)
6 Because Plaintiff has failed to comply with the screening order, his inaction amounts to an
7 unreasonable delay in prosecuting this case resulting in a presumption of injury. Therefore, the
8 third factor—a risk of prejudice to defendants—also weighs in favor of dismissal. Carey, 856
9 F.2d at 1440.
10 The fourth factor usually weighs against dismissal because public policy favors
11 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However,
12 “this factor lends little support to a party whose responsibility it is to move a case toward
13 disposition on the merits but whose conduct impedes progress in that direction.” In re
14 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006)
15 (citation omitted). By failing to file a second amended complaint or a notice of voluntary
16 dismissal, Plaintiff is not moving this case forward and is impeding its progress. Thus, the fourth
17 factor—the public policy favoring disposition of cases on their merits—weighs in favor of
18 dismissal. Carey, 856 F.2d at 1440.
19 Finally, the Court’s warning to a party that failure to obey the court’s order will result in
20 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262.
21 The Court’s September 13, 2023 screening order expressly warned Plaintiff as follows: “If
22 Plaintiff fails to comply with this order, the Court will recommend that this action be
23 dismissed, without prejudice, for failure to obey a court order and for failure to prosecute.”
24 (Doc. 15 at 10, emphasis in original.) Additionally, in this Court’s First Informational Order In
25 Prisoner/Civil Detainee Civil Rights Case, issued September 3, 2021, Plaintiff was previously
26 warned of the potential for dismissal for failing to obey court orders, to wit: “In litigating this
27 action, the parties must comply with this Order, the Federal Rules of Civil Procedure (‘Fed. R.
1 | (‘Local Rules’), as modified by this Order. Failure to comply will be grounds for imposition of
2 || sanctions which may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (Doc.
3 | 3 at 1.) Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance.
4 | Therefore, the fifth factor—the availability of less drastic sanctions—also weighs in favor of
5 | dismissal. Carey, 856 F.2d at 1440.
6 Plaintiff twice previously was granted leave to amend his complaint to cure identified
7 | deficiencies to the extent he was able to do so in good faith. Lopez v. Smith, 203 F.3d 1122, 1130
8 | (9th Cir. 2000). As Plaintiff has been unable or unwilling to adhere to the Court’s
9 | admonishments and remedy his deficient complaint, the undersigned finds further leave to amend
10 | would be futile.
11 I. CONCLUSION, ORDER AND RECOMMENDATIONS
12 The Clerk of the Court is DIRECTED to assign a district judge to this action.
13 Further, for the reasons given above, the undersigned RECOMMENDS that this action
14 | be DISMISSED without prejudice for Plaintiffs failure to obey court orders and failure to
15 | prosecute.
16 These Findings and Recommendations will be submitted to the United States District
17 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days
18 | of the date of service of these Findings and Recommendations, Plaintiff may file written
19 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s
20 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time
21 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
22 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
23 | IT IS SO ORDERED.
Dated: _ October 13, 2023 | Wr bo
25 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10056423. Public record. Not legal advice.