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Joseph Edward Marty v. Louis B. Green

April 27, 2011

JOSEPH EDWARD MARTY, PLAINTIFF,
v.
LOUIS B. GREEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

On April 6, 2011, the undersigned entered proposed findings and recommendations that recommended the dismissal of 18 defendants from this action with prejudice.*fn1 (Order, Findings & Recommendations, and Order to Show Cause,*fn2 Apr. 6, 2011, Dkt. No. 43.) In entering those proposed findings and recommendations, the undersigned also ordered plaintiff to show cause why his claims against the remaining defendants who have not appeared in this action-defendants Kelley Bently, "Sargent Foxworthy," Jeff Neves, Barbara Newman, Carol Stowell, and Tania Urgin-should not be dismissed pursuant to Federal Rules of Civil Procedure 4(m) and 41(b). (Id. at 15-16.) Plaintiff was required to show such cause, in writing, no later than April 15, 2011. (Id. at 17.) Plaintiff failed to file a response to the order to show cause.*fn3 Accordingly, the undersigned recommends that plaintiff's claims against defendants Bently, Foxforthy, Neves, Newman, Stowell, and Urgin be dismissed with prejudice.

I. Dismissal Without Prejudice

Pursuant to Federal Rule of Civil Procedure 4(m)

On October 6, 2010, plaintiff filed what the court deemed to be a First Amended Complaint (Dkt. No. 11). (See Order, Oct. 14, 2010, Dkt. No. 12.) The court issued a summons in regards to the First Amended Complaint on October 14, 2010. (Summons In A Civil Case, Oct. 14, 2010, Dkt. No. 13.) This summons included as defendants the following individuals: Kelley Bently, "Sargent Foxworthy," Jeff Neves, Barbara Newman, Carol Stowell, and Tania Urgin. As noted in the OSC, the court's docket does not reflect with any certainty that plaintiff ever served these defendants with the original summons and the original complaint, or the First Amended Complaint and related summons. Accordingly, the undersigned provided plaintiff with notice and an opportunity, in the form of a response to the OSC, to demonstrate either: (1) that he properly served these defendants, or (2) good cause for the failure to serve these defendants. Again, the court's docket reflects that plaintiff did not file a response to the OSC.

In relevant part, Federal Rule of Civil Procedure 4(m) provides:

(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Over 120 days have passed since plaintiff filed the First Amended Complaint and since the court issued the summons pertaining to the First Amended Complaint. Furthermore, plaintiff failed to show good cause for his failure to serve defendants Bently, Foxworthy, Neves, Newman, Stowell, and Urgin, even after being given notice of the potential dismissal pursuant to Rule 4(m) and an opportunity to show good cause. Accordingly, the undersigned recommends that plaintiff's claims against defendants Bently, Foxworthy, Neves, Newman, Stowell, and Urgin be dismissed. Dismissal pursuant to Rule 4(m) would be without prejudice.

II. Dismissal With Prejudice

Pursuant to Federal Rule of Civil Procedure 41(b)

The undersigned also recommends the dismissal of plaintiff's claims against defendants Bently, Foxworthy, Neves, Newman, Stowell, and Urgin with prejudice, pursuant to Federal Rule of Civil Procedure 41(b). Such dismissal is warranted in light of plaintiff's failure to prosecute his action, comply with the Federal Rules of Civil Procedure, comply with the court's Order Setting Status Conference,*fn4 and respond to the OSC. Rather than comply with the applicable procedural rules and this court's orders, plaintiff has consistently flouted them. For example, plaintiff filed several documents with this court that: (1) identify the United States District Court, Eastern District of California in the caption, and (2) purport to be orders or writs of this court signed by "Joseph-Edward:Marty" as "Judge, Bank, Banker and Postmaster." (See Order, Apr. 7, 2011, Dkt. No. 44; see also Dkt. Nos. 36-39, 41-42, 45.)

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court's local rules, or failure to comply with the court's orders.*fn5 See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."), cert. denied, 506 U.S. 915 (1992); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition), cert. denied, 538 U.S. 909 (2003). This court's Local Rules are in accord. See E. Dist. Local Rule 110 ("Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."); E. Dist. Local Rule 183(a) (providing that a pro se party's failure to comply with the Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, among other things, dismissal of that party's action).

A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court's local rules. See, e.g., Ferdik, ...


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