(PC) Richardson v. Tuman ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 PAUL RICHARDSON, Case No. 1:18-cv-01166-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 13 BECAUSE OF PLAINTIFF’S FAILURE R. TUMAN, et al., TO PROSECUTE 14 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 15 FOURTEEN DAYS 16 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 17 18 Paul Richardson (“Plaintiff”) is a former state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint 20 commencing this action on August 28, 2018. (ECF No. 1). On February 19, 2019, the Court 21 screened Plaintiff’s complaint. (ECF No. 15). The Court gave Plaintiff thirty days to “notify 22 the Court in writing that he does not wish to file a First Amended [C]omplaint and is instead 23 willing to proceed only on First Amendment retaliation claims against Defendant Tuman and 24 Defendant Cota,” file a First Amended Complaint, or “[n]otify the Court in writing that he 25 wishes to stand by the Complaint as written, in which case the undersigned will issue findings 26 and recommendation to the assigned district judge consistent with this order.” (Id. at 18). 27 The order was returned as undeliverable on March 18, 2019. Plaintiff has not 28 /// 1 responded to the Court’s order or filed a notice of change of address.1 Accordingly, the Court 2 will recommend that Plaintiff’s case be dismissed, without prejudice, for failure to prosecute. 3 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 4 comply with a court order, the Court must weigh the following factors: (1) the public=s interest 5 in expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 6 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 7 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 8 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 9 “‘The public=s interest in expeditious resolution of litigation always favors dismissal.’” 10 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 11 this factor weighs in favor of dismissal. 12 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 13 determine whether the delay in a particular case interferes with docket management and the 14 public interest…. It is incumbent upon the Court to manage its docket without being subject to 15 routine noncompliance of litigants....” Pagtalunan, 291 at 639. As described above, Plaintiff 16 has failed to respond to a court order and has failed to update his address. These failures are 17 delaying this case and interfering with docket management. Therefore, the second factor 18 weighs in favor of dismissal. 19 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 20 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, 21 Adelay inherently increases the risk that witnesses= memories will fade and evidence will 22 become stale,@ id. at 643, and it is Plaintiff's failure to respond to a court order and to comply 23 with the Local Rule requiring him to keep the parties and the Court apprised of his current 24 address that is causing delay. Therefore, the third factor weighs in favor of dismissal. 25 As for the availability of lesser sanctions, at this stage in the proceedings there is little 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 || available to the Court which would constitute a satisfactory lesser sanction while protecting the 2 || Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff's in 3 || forma pauperis status, monetary sanctions are of little use, and given the stage of these 4 || proceedings, the preclusion of evidence or witnesses is not available. Additionally, because the 5 || dismissal being considered in this case is without prejudice, the Court is stopping short of using 6 || the harshest possible sanction of dismissal with prejudice. 7 Finally, because public policy favors disposition on the merits, this factor weighs 8 || against dismissal. Id. 9 After weighing the factors, the Court finds that dismissal without prejudice is 10 || appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 11 1. This action be dismissed, without prejudice, based on Plaintiff's failure to 12 prosecute this case; and 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations will be submitted to the United States district 15 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 16 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 17 || file written objections with the Court. The document should be captioned “Objections to 18 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 || (9th Cir. 1991)). 22 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 23 || judge to this case. IT IS SO ORDERED. 25 Dated: _ August 30, 2019 [Je heey —— 26 UNITED STATES MAGISTRATE JUDGE 27 28