June 4, 2013
LARRY LOUIS JUDGE, Plaintiff,
SAN BERNARDINO COUNTY DEPARTMENT, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Plaintiff, an inmate at the West Valley Detention Center, filed a civil rights Complaint pursuant to 42 U.S.C. section 1983 on December 1, 2011. The Complaint appeared to name as Defendants the County of San Bernardino, various officials at the West Valley Detention Center, the Arrowhead Regional Medical Center, a San Bernardino County Superior Court judge, and the San Bernardino County District Attorney. Although the Complaint was quite unclear, it appeared that some of Plaintiff's claims arose out of Plaintiff's then-pending criminal proceedings in the San Bernardino Superior Court. Plaintiff alleged that jail officials interfered with Plaintiff's legal mail, impeded Plaintiff's ability to submit grievances, and failed to comply with court orders. Plaintiff also complained that the judge allegedly violated Plaintiff's constitutional rights in the criminal proceedings, and that the prosecutor allegedly introduced inadmissible evidence. Plaintiff also appeared to complain about an alleged breach of confidentiality by the Arrowhead Regional Medical Center.
On May 10, 2012, the Court issued an "Order Dismissing Complaint With Leave to Amend, " which granted Plaintiff leave to file a First Amended Complaint within thirty (30) days of the date of the Order. The Order cautioned Plaintiff that failure to file a timely First Amended Complaint could result in the dismissal of the action.
Plaintiff did not file a First Amended Complaint within the allotted time. Therefore, on June 25, 2012, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the action without prejudice for failure to prosecute.
On July 16, 2012, Plaintiff filed a "Motion of Objection of Judgment and Dismissal." Although unclear, this motion appeared to signify Plaintiff's desire to pursue the action. Therefore, on July 17, 2012, the Magistrate Judge withdrew the Report and Recommendation and granted Plaintiff an extension until August 6, 2012, to file a First Amended Complaint. The Magistrate Judge advised Plaintiff that all other provisions of the May 10, 2012 Order remained in force. See July 17, 2012 Minute Order.
Thereafter, several documents sent to Plaintiff by the Court, including the July 17, 2012 Minute Order, were returned to the Court undelivered, marked "paroled" or "discharged."
However, on July 24, 2012, Plaintiff filed a "Motion to Relate and Motion for Production of Documents and Transcripts." On July 24, 2012, the Magistrate Judge issued a Minute Order denying this motion without prejudice and referencing the Court's May 10, 2012 Order and July 17, 2012 Minute Order. On August 3, 2012, the Court received from Plaintiff a document titled "Injunction Order to Bypass Grievance and Administrative Remedy, " bearing a return address at the West Valley Detention Center. The Court ordered this document not to be filed because the document appeared to request an exemption from the administrative remedy procedures concerning matters unrelated to the lawsuit. On August 15, 2012, Plaintiff filed a motion for appointment of counsel, again bearing a return address at the West Valley Detention Center. Plaintiff did not file any First Amended Complaint, however, despite the expiration of the August 6, 2012 deadline for doing so.
On August 21, 2012, the Magistrate Judge issued a Minute Order denying Plaintiff's motion for appointment of counsel without prejudice and sua sponte extending the time within which Plaintiff could file a First Amended Complaint to September 13, 2012. The Minute Order advised Plaintiff that all other provisions of the May 10, 2012 Order remained in force. Plaintiff again failed to file a First Amended Complaint within the deadline, as extended.
On September 21, 2012, Plaintiff filed a document titled "Motion to First Amend Complaint [sic]." Despite its title, this document did not constitute or contain any First Amended Complaint, and did not comply with the Court's May 10, 2012 Order. Therefore, on September 21, 2012, the Magistrate Judge issued a Minute Order denying the "Motion to First Amend Complaint" and sua sponte granting Plaintiff an extension of time to file a First Amended Complaint to October 12, 2012. The Minute Order again advised Plaintiff that all other provisions of the May 10, 2012 Order remained in force. Plaintiff again failed to file a First Amended Complaint by the deadline, as extended.
On October 22, 2012, the Court received from Plaintiff a packet of documents including: (1) several pages titled "832.5 Citizen Complaint Against Peace Officer, " appearing to constitute "citizen's complaints" within the meaning of California Penal Code section 832.5; (2) several jail inmate discipline reports concerning Plaintiff; (3) a document appearing to record the contents of a commissary package; (4) several documents concerning Plaintiff's alleged inmate grievances; and (5) a document bearing Plaintiff's name titled "medical discharge." This packet of documents, which is ordered filed, plainly fails to constitute any pleading, much less a First Amended Complaint in conformity with the May 10, 2012 Order.
This action should be dismissed for failure to prosecute and for failure to file within the allotted time a First Amended Complaint in conformity with the Court's May 10, 2012 Order. See Link v. Wabash, R.R. , 370 U.S. 626, 629-30 (1952) (court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute); Pagtalunan v. Galaza , 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003) (court may dismiss action for failure to follow court order); Ferdik v. Bonzelet , 963 F.2d 1258, 1260-61 (9th Cir.), cert. denied, 506 U.S. 915 (1992) (court may dismiss action for failure to comply with a court order, after the court considers the appropriate factors); see also Fed.R.Civ.P. 41(b). In determining whether to dismiss, the Court weighs 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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza , 291 F.3d at 642 (citation omitted).
The public's interest in expeditious resolution always favors dismissal." Id . Over four months have passed since the initial deadline for the filing of a First Amended Complaint, and there still is no operative pleading on file. Plaintiff's continuing failure to file a First Amended Complaint, and his filing of other documents not constituting the required pleading, have consumed the Court's time unnecessarily. "It is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants such as [petitioner]." Id . (citation omitted). The first two factors therefore weigh significantly in favor of dismissal.
No Defendant has been served in the action. However, in considering the risk of prejudice the Court may consider a plaintiff's reasons, if any, for failing to comply with a court order. Id. at 642-43. Plaintiff has offered no reasons, and none appear, for Plaintiff's repeated disregard of the Court's May 10, 2012 Order. Plaintiff's possible temporary discharge from custody does not excuse non-compliance. It is Plaintiff's duty to maintain a current address of record with the Court. See Local Rule 41-6; Carey v. King , 856 F.2d 1439, 1441 (9th Cir. 1988) ("A party, not the district court, bears the burden of keeping the court apprised of any changes in his mailing address."). In any event, it appears that any release from custody was of short duration. This factor weighs in favor of dismissal.
The Court has considered the availability of less drastic alternatives to dismissal. In the Court's May 10, 2012 Order, the Court expressly advised Petitioner that failure to file a First Amended Petition could result in dismissal of the action. "Warning that failure to obey a court order will result in dismissal can itself meet the consideration of alternatives' requirement." In re Phenylpropanolamine (PPA) Products Liability Litigation , 460 F.3d 1217, 1229 (9th Cir. 2006) (citation and internal quotations omitted). The Court sua sponte granted Plaintiff three extensions of time to file a First Amended Complaint. It would be an idle act to grant further extensions to a litigant who repeatedly has disregarded the Court's previous orders.
Finally, the factor that public policy favors disposition of cases on their merits weighs against dismissal. See Pagtalunan v. Galaza , 291 F.3d at 643 (citation omitted). 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." In re Phenylpropanolamine (PPA) Products Liability Litigation , 460 F.3d at 1228 (citation and internal quotations omitted). Here, because Plaintiff's intransigence has stalled the case at the pleading stage, this factor does not weigh heavily against dismissal.
In sum, considering all of the appropriate factors, and considering Plaintiff's evident disinclination to heed the Court's orders to file a First Amended Complaint in conformity with the May 10, 2012 Order, the Court concludes that dismissal is appropriate. To temper the impact of dismissal, however, the Court will make the dismissal without prejudice.
For all of the reasons discussed herein, it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) dismissing the action without prejudice.