United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING
ACTION FOR FAILURE TO PROSECUTE (ECF NO. 81) OBJECTIONS DUE
WITHIN THIRTY DAYS
Idis Nawabi, a former state prisoner proceeding pro
se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983 on February
25, 2013. On February 20, 2014, the magistrate assigned to
the action dismissed Plaintiff's complaint with leave to
amend. Plaintiff filed a first amended complaint on March 6,
2014. On March 11, 2014, the magistrate judge screened the
first amended complaint and found that it stated a claim
against J. Hartley, R. Chapnick, B. Borges and Hancock for
deliberate indifference to serious medical needs in violation
of the Eighth Amendment and service was initiated on the
Hartley, Chapnick, Borges and Hancock filed a motion to
dismiss on October 3, 2014. On October 27, 2014, a
substitution of attorney form was filed and counsel Raymond
Boucher was substituted as counsel for Plaintiff. On this
same date, the parties filed a stipulation for Plaintiff to
file an amended complaint.
November 3, 2014, this case was related to a group of cases
and reassigned to United States District Judge Lawrence J.
O'Neill and the undersigned. A second amended complaint
was filed on November 4, 2014, against Edmund G. Brown, Jr.,
Governor; Jeffrey Beard, Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”); James D. Hartley, Warden of Avenal
State Prison (“ASP”); R. Chapnick, ASP Chief
Medical Officer, M.D.; B. Borges, ASP Registered Nurse; and
Hancock, ASP Correctional Officer (collectively
“Defendants”) alleging deliberate indifference in
violation of the Eighth Amendment.
February 2, 2015, Defendants filed a motion to dismiss.
Plaintiff filed an opposition to the motion on April 13,
2015, and Defendants filed a reply on April 22, 2015. On May
20, 2015, findings and recommendations issued recommending
granting Defendants' motion to dismiss and granting
Plaintiff an opportunity to file an amended complaint as to
those claims that had previously been found to state a claim.
Plaintiff filed objections to the findings and
recommendations on June 17, 2015; and Defendants filed
objections on July 8, 2014.
October 7, 2015, the district judge filed an order re the
findings and recommendations granting in part and denying in
part Defendants' motion to dismiss. Plaintiff's
Eighth Amendment conditions of confinement claim was
dismissed without leave to amend on the ground of qualified
immunity and Plaintiff was granted leave to amend his Eighth
Amendment claim alleging deliberate indifference to his
serious medical needs claim.
November 30, 2015, this matter was stayed at the stipulation
of the parties until the resolution of the appeals in the
related cases of Smith, et al. v. Schwarzenegger, et
al., appeal no. 15-17155, Hines v. Youssef,
appeal no. 15-16145, and Jackson, et al. v. Brown, et
al., appeal no. 15-17076.
February 1, 2019, the Ninth Circuit issued an order affirming
the district court decision in Smith, et al. v.
Schwarzenegger, et al., appeal no. 15-17155, and Hines
v. Youssef, appeal no. 15-16145, and affirming in part and
reversing in part in Jackson, et al. v. Brown, et
al., appeal no. 15-17076. Plaintiffs filed requests for
en banc review which were denied on March 26, 2019.
On April 3, 2019, the mandate issued in each of the actions.
The stay of this action was lifted on April 5, 2019, and
Plaintiff was ordered to file a third amended complaint
within fourteen days.
April 18, 2019, the court granted the parties stipulation for
an extension of time for Plaintiff to file a third amended
complaint. On July 16, 2019, counsel filed a motion to
withdraw as attorney for Plaintiff in this action. On August
30, 2019, Defendants filed a statement of non-opposition to
the motion to withdraw. A hearing on the motion to withdraw
was held on September 25, 2019. Plaintiff's counsel Brian
Bush appeared and counsel William Buranich appeared
telephonically for Defendants. The Court found that good
cause existed for Plaintiff's counsel to withdraw in this
matter due to Plaintiff's failure to communicate with him
which made it unreasonably difficult for counsel to carry out
representation in the matter. On September 26, 2019, an order
issued granting counsel's request to withdraw from
representation in this matter and ordering Plaintiff to
either obtain substitute counsel or file a third amended
complaint within sixty days.
than sixty days have passed and Plaintiff has not filed an
amended complaint, substitute counsel has not appeared in the
matter, nor has Plaintiff otherwise responded to the
September 26, 2019 order.
of the Federal Rules of Civil Procedure allows a court to
involuntarily dismiss an action if the plaintiff fails to
prosecute the action or fails to comply with a court order.
Fed.R.Civ.P. 41(b). Local Rule 110 provides that
“[f]ailure 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 . . . within
the inherent power of the Court.” The Court has the
inherent power to control its docket and may, in the exercise
of that power, impose sanctions where appropriate, including
dismissal of the action. Bautista v. Los Angeles
County, 216 F.3d 837, 841 (9th Cir. 2000).
may dismiss an action, with prejudice, based on a party's
failure to prosecute an action, failure to obey a court
order, or failure to comply with local rules. See,
e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th
Cir. 1995) (dismissal for noncompliance with local
rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th
Cir. 1992) (dismissal for failure to comply with an
order to file an amended complaint); Carey v. King, 856
F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for
failure to comply with local rule requiring pro se plaintiffs
to keep court apprised of address); Malone v. United
States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)
(dismissal for failure to comply with court order);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for lack of prosecution and failure to
comply with local rules).
determining whether to dismiss an action for failure to
comply with a pretrial order, the Court must weigh “(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.” In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and
citations omitted). ...