1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS JUSTIN CUELLAR, No. 1:20-cv-00960-ADA-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING DISMISSAL OF

13 v. ACTION, WITHOUT PREJUDICE, FOR

FAILURE TO PROSECUTE

14 WELLPATH, LLC. (ECF No. 54) 15 Defendant. 16 17 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 18 U.S.C. § 1983. 19 On April 5, 2023, the parties reached a settlement agreement which was placed on the 20 record. On April 6, 2023, the Court directed the parties to file dispositional documents within 21 thirty days, i.e., on or before May 8, 2023. (ECF No. 45.) However, the parties failed to file the 22 dispositional documents and an order to show cause was issued on May 9, 2023. (ECF No. 46.) 23 On May 10, 2023, Defendant filed a response to the order to show cause and submits 24 following the completion of the settlement conference, the dispositional documents were sent to 25 Plaintiff. The parties had a telephone converse in which Plaintiff discussed and addressed a 26 typographical error. However, Plaintiff had not signed and returned the dispositional documents, 27 and Defendant “expect[ed] that Plaintiff will follow through on his commitment to return the 28 executed papers.” (ECF No. 47.) Therefore, on May 11, 2023, the Court discharged the order to 1 show cause and granted the parties thirty days to submit dispositional documents. (ECF No. 48.) 2 After no documents were filed, on June 13, 2023, the Court directed Defendant to file a status 3 report. (ECF No. 49.) 4 Defendant filed a status report on June 14, 2023, indicating that counsel “has repeatedly 5 and persistently called the plaintiff’s telephone number and in each instance the call resulted in a 6 voice mail message that here was no answer and that the voice mail message for plaintiff was full, 7 providing no opportunity to leave a message.” (ECF No. 50 at 1.) In addition, there has been no 8 response to e-mail messages sent to Plaintiff’s e-mail address. (Id.) 9 On June 20, 2023, the Court set the case for a status conference on July 13, 2023. (ECF 10 No. 51.) 11 On July 5, 2023, the Court emailed Plaintiff the meeting id and passcode information for 12 the hearing. (ECF No. 52.) 13 At the hearing on July 13, 2023, Jerome Varanini appeared on behalf of Defendant 14 Wellpath, LLC, and Plaintiff did not appear for the hearing. Counsel Varanini indicated that the 15 status of the case remained the same in that Plaintiff’s voice mail message is still full and there 16 has no email communication from Plaintiff, despite counsel’s efforts. Consequently, on July 14, 17 2023, the Court issued an order for Plaintiff to show cause why the action should not be 18 dismissed, without prejudice, for failure to prosecute. (ECF No. 54.) Plaintiff has not responded 19 to the order to show cause and the time to do so has passed. Accordingly, dismissal of the action 20 is warranted. 21 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 22 or with any order of the Court may be grounds for imposition by the Court of any and all 23 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 24 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 25 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 26 2000). 27 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 28 obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 1 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 2 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 3 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 4 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 5 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 6 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 7 of prosecution and failure to comply with local rules). 8 “In determining whether to dismiss an action for lack of prosecution, the district court is 9 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of 10 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 11 the public policy favoring disposition of cases on their merits; and (5) the availability of less 12 drastic sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson, 779 F.2d at 1423). These 13 factors guide a court in deciding what to do, and are not conditions that must be met in order for a 14 court to take action. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 15 1217, 1226 (9th Cir. 2006) (citation omitted). 16 In this instance, the public’s interest in expeditious resolution of the litigation and the 17 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) 18 Products Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to respond to the order to 19 show cause within twenty days of July 14, 2023 and has not done so. Accordingly, Plaintiff’s 20 failure to comply with the order of the Court hinders the Court’s ability to move this action 21 towards disposition. This action can proceed no further without Plaintiff’s compliance with the 22 order and his failure to comply indicates that Plaintiff does not intend to diligently litigate this 23 action. 24 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 25 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 26 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of 27 dismissal. 28 The public policy in favor of deciding cases on their merits is greatly outweighed by the 1 | factors in favor of dismissal. It is Plaintiff's responsibility to move this action forward. In order 2 | for this action to proceed, Plaintiff is required to respond to the order to show cause as this action 3 | cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the fourth factor 4 | does not outweigh Plaintiffs failure to comply with the Court’s orders. 5 Finally, a court’s warning to a party that their failure to obey the court’s order will result 6 | in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 7 | Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s July 14, 2023 order to 8 | show cause expressly stated: “Plaintiff's failure to respond to this order will result in a 9 || recommendation to dismiss the action, without prejudice, for failure to prosecute.” (ECF No. 54.) 10 | Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance with the 11 |} Court’s order. 12 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED for 13 | Plaintiffs failure to prosecute. 14 This Findings and Recommendation is submitted to the district judge assigned to this 15 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 16 | (14) days of service of this Recommendation, Plaintiff may file written objections to this findings 17 | and recommendation with the Court. Such a document should be captioned “Objections to 18 | Magistrate Judge’s Findings and Recommendation.” The district judge will review the magistrate 19 | judge’s Findings and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are 20 | advised that failure to file objections within the specified time may result in the waiver of rights 21 | onappeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 22 | 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. OF. ee 95 | Dated: _ August 21, 2023 "

UNITED STATES MAGISTRATE JUDGE

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