warning plaintiff satisfies requirement that court consider alternatives to dismissalSummary of this case from West v. Pettigrew
No. CIV S-06-0578 MCE EFB P.
December 30, 2008
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On September 30, 2008, the district judge gave plaintiff 30 days to file a pretrial statement. Instead of filing a pretrial statement, he filed a unsupported request that the undersigned recuse himself, and a request for an extension of time to file a pretrial statement. On November 12, 2008, the court found that plaintiff had not demonstrated good cause for an extension of time, see Fed.R.Civ.P. 6(b), but nonetheless gave plaintiff 15 days to file a pretrial statement. The court explained in some detail that pro se prisoners are bound by the procedural rules and the orders of this court, and warned plaintiff that if he failed to file a pretrial statement as directed, the court would recommend that this action be dismissed. Further, the court warned plaintiff that the recommendation could be for dismissal with prejudice. The 15 days have passed and plaintiff has not filed a pretrial statement. He has filed an objection to the November 12, 2008, order and a second request for an extension of time.
I. Request for Extension of Time
II. Failure to Prosecute
See6Id. see Morris v. Morgan Stanley Co., 942 F.2d 648652 Link v. Wabash R.R. Co.,370 U.S. 626629-30sua sponte Pagtalunan v. Galaza, 291 F.3d 639 Ferdik v. Bonzelet,963 F.2d 1258see also Jones v. Phipps,39 F.3d 158163Carey v. King, 856 F.2d 1439
In considering whether dismissal is the appropriate sanction, however, a court must weigh five factors: (1) the public 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. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (district court did not abuse discretion by sua sponte dismissing habeas petition for failure to prosecute and for disobeying court order). Dismissal is proper when at least four factors support dismissal or where at least three factors "strongly" support dismissal. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). The first two factors, the public interest in expeditious resolution of litigation and the court's need to manage its docket, always weigh in favor of dismissal. See Malone v. United States Postal Service, 833 F.2d 128, 131 (9th Cir. 1987). Here, dismissal also is warranted under the third factor because plaintiff's repeated failure to file a pretrial statement pursuant to the September 30, 2008, Order has caused undue delay, presumptively prejudicing defendants. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) ("Unreasonable delay creates a presumption of injury to the defense."). Courts often decide that dismissal is improper under the fourth factor, the public policy favoring disposition of cases on their merits, because the policy is strong. Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996). In this case, however, plaintiff's refusal to file a pretrial statement in violation of the specific order that he do so makes it impossible to reach the merits. See Valley Engineers, Inc., v. Electrical Engineering, 158 F.3d 1051, 1056-57 (9th Cir. 1998).
The fifth factor also weighs in favor of dismissal. A court must identify and consider less drastic sanctions, including a warning, fine or imposition of costs or fees. Warning a plaintiff that failure to take steps towards resolution of his action on the merits will result in dismissal satisfies the requirement the court consider the alternatives. See Buss v. Western Airlines, Inc., 738 F.2d 1053, 1054 (9th Cir. 1984), cert. denied, 469 U.S. 1192 (1985); Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 n. 6 (3d Cir. 1982). Here, the court was warned that his failure to take steps necessary to resolve this action on the merits may result in dismissal of his action. Furthermore, imposing fines or attorney fees would be wholly impracticable because plaintiff proceeds pro se and in forma pauperis and plaintiff has disregarded all prior warnings regarding sanctions, including the sanction of dismissal. These alternatives, therefore, are infeasible. The alternative of dismissal without prejudice is unsatisfactory because permitting plaintiff to file anew at his whim would only consume yet more of the court's time that could be devoted to other cases on its already overburdened docket. Weighing the pertinent factors, the court finds that all favor dismissal.
For the reasons explained above, plaintiff has not shown good cause for a second extension of time to file a pretrial statement. Furthermore, his repeated refusal to file a pretrial statement amounts to a failure to prosecute that justifies dismissing this action with prejudice.
Accordingly, it is ORDERED that plaintiff's request for an extension of time to file a pretrial statement is denied.
It further is RECOMMENDED that this action be dismissed with prejudice for plaintiff's failure to prosecute this action.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 15 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. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).