(PC) Freitag v. Mims ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RYAN DAVID FREITAG, Case No. 1:18-cv-01180-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE MARGARET MIMS, et al., TO PROSECUTE 13 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 14 FOURTEEN DAYS 15 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 16 17 Ryan Freitag (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this 19 action on August 31, 2018. (ECF No. 1). On January 24, 2019, the Court screened Plaintiff’s 20 complaint. (ECF No. 8). The Court gave Plaintiff thirty days to either file a first amended 21 complaint, or “[n]otify the Court that he wishes to stand on the complaint, subject to this Court 22 issuing findings and recommendations to the assigned district judge consistent with this order.” 23 (Id. at 11). 24 The order was returned as undeliverable on February 21, 2019. Plaintiff has not 25 responded to the Court’s order or filed a notice of change of address.1 Accordingly, the Court 26 27 1 “A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal 28 Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute.” Local Rule 183(b). 1 will recommend that Plaintiff’s case be dismissed, without prejudice, for failure to prosecute. 2 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 3 comply with a court order, the Court must weigh the following factors: (1) the public=s interest 4 in expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 5 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 6 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 7 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 8 “‘The public=s interest in expeditious resolution of litigation always favors dismissal.’” 9 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 10 this factor weighs in favor of dismissal. 11 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 12 determine whether the delay in a particular case interferes with docket management and the 13 public interest…. It is incumbent upon the Court to manage its docket without being subject to 14 routine noncompliance of litigants....” Pagtalunan, 291 at 639. As described above, Plaintiff 15 has failed to respond to a court order and has failed to update his address. These failures are 16 delaying this case and interfering with docket management. Therefore, the second factor 17 weighs in favor of dismissal. 18 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 19 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, 20 Adelay inherently increases the risk that witnesses= memories will fade and evidence will 21 become stale,@ id. at 643, and it is Plaintiff's failure to respond to a court order and to comply 22 with the Local Rule requiring him to keep the parties and the Court apprised of his current 23 address that is causing delay. Therefore, the third factor weighs in favor of dismissal. 24 As for the availability of lesser sanctions, at this stage in the proceedings there is little 25 available to the Court which would constitute a satisfactory lesser sanction while protecting the 26 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s in 27 forma pauperis status, monetary sanctions are of little use, and given the stage of these 28 proceedings, the preclusion of evidence or witnesses is not available. Additionally, because the 1 || dismissal being considered in this case is without prejudice, the Court is stopping short of using 2 harshest possible sanction of dismissal with prejudice. 3 Finally, because public policy favors disposition on the merits, this factor weighs 4 || against dismissal. Id. 5 After weighing the factors, the Court finds that dismissal without prejudice is 6 || appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 7 1. This action be dismissed, without prejudice, based on Plaintiff's failure to 8 prosecute this case; and 9 2. The Clerk of Court be directed to close this case. 10 These findings and recommendations will be submitted to the United States district 11 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 12 || fourteen (14) days after being served with these findings and recommendations, Plaintiff may 13 || file written objections with the Court. The document should be captioned “Objections to 14 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 17 |} (9th Cir. 1991)). 18 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 19 || judge to this case. 20 IT IS SO ORDERED. 22 |! Dated: _ August 30, 2019 [Jee ey —— 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28