1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON O. MURPHY, SR. No. 2:20–cv–1688–TLN–CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS FOR FAILURE TO PROSECUTE

13 v. (ECF No. 6) 14 JP MORGAN CHASE & CO., 15 Defendant. 16 17 Plaintiff, proceeding pro se, filed a complaint against defendant asserting various causes 18 of action for being denied a bank account in a “rude” manner; he also requested leave to proceed 19 in forma pauperis. (See ECF Nos. 1, 2.) The court granted plaintiff’s IFP request and dismissed 20 the complaint for failure to state a claim. (ECF No. 3.) Plaintiff was given 28 days to amend the 21 complaint and was warned that a failure to do so by the required deadline “may result in the 22 imposition of sanctions, including dismissal of the action with prejudice pursuant to Federal Rule 23 of Civil Procedure 41(b).” (Id. at 4.) When that deadline passed with no filings from plaintiff, 24 the court on October 21, 2020 issued an order to show cause within 14 days why this action 25 should not be dismissed with prejudice under Rule 41(b) for failure to prosecute this case, and 26 failure to comply with the court’s prior order. (ECF No. 4.) 27 On October 30, 2020, plaintiff instead filed a document entitled “Complaint, Judicial 28 Misconduct,” asserting some indecipherable form of misconduct by District Judge Nunley, who is 1 assigned to this case along with the undersigned. (ECF No. 5.) On November 4, 2020, the 2 undersigned responded to that filing, reminding plaintiff that he was being given “one final 3 opportunity” to comply with the court’s prior order by filing within 10 days either an amended 4 complaint or a notice of voluntary dismissal. (ECF No. 6 at 2.) Plaintiff was again warned that 5 failure to comply “will result in a recommendation that this action be dismissed with prejudice 6 pursuant to Federal Rule of Civil Procedure 41(b).” (Id.) More than 10 days have passed without 7 a response from plaintiff. Accordingly, the undersigned recommends dismissing this case with 8 prejudice under Rule 41(b). 9 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 10 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 11 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 12 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 13 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 14 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 15 under Rule 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to 16 follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 17 F.2d 1258, 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil 18 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 19 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 20 curiam) (stating that district courts have inherent power to control their dockets and may impose 21 sanctions including dismissal or default). This court’s Local Rules are in accord. See E.D. Cal. 22 Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any order of 23 the Court may be grounds for imposition by the Court of any and all sanctions authorized by 24 statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) 25 (providing that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the 26 court’s Local Rules, and other applicable law may support, among other things, dismissal of that 27 party’s action). 28 //// 1 A court must weigh five factors in determining whether to dismiss a case for failure to 2 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 3 rules. See Ferdik, 963 F.2d at 1260. These are: 4 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 5 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 6 (5) the availability of less drastic alternatives. 7 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 8 Here, the first two factors weigh in favor of dismissal, because this case has already been 9 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 10 factor also favors dismissal, because, at a minimum, defendant has been deprived of an 11 opportunity to be promptly notified of the lawsuit and prepare its defense. With the passage of 12 time, memories fade and evidence becomes stale. The fifth factor also favors dismissal because 13 the court has already attempted less drastic alternatives. Specifically, after granting plaintiff leave 14 to proceed without paying the filing fee, the court informed plaintiff of the complaint’s 15 deficiencies and granted him leave to amend. However, plaintiff has repeatedly failed to file an 16 amended complaint, leaving the court with little alternative but to recommend dismissal. Given 17 plaintiff’s request to proceed IFP, it is unlikely that monetary sanctions would be effective. 18 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 19 factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to prosecute 20 the case and comply with the rules that precludes a resolution on the merits. Therefore, after 21 carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate. 22 Accordingly, IT IS HEREBY RECOMMENDED that: 23 1. Plaintiff’s claims be DISMISSED with prejudice pursuant to Federal Rule of Civil 24 Procedure 41(b); and 25 2. The Clerk of Court be directed to close this case. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 28 days after being served with these findings and recommendations, any party may file written 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 3 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 4 | objections. The parties are advised that failure to file objections within the specified time may 5 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 6 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 7 | Dated: November 18, 2020 f Pee a4 if / bas CANO fu 8 CAROLYN K. DELANEY 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 | 19.mup.1688 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28