(PC) Wardlaw v. Griffith ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROSS ALLEN WARDLAW, Case No. 1:19-cv-00848-AWI-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS ACTION v. BE DISMISSED, WITH PREJUDICE, FOR 12 FAILURE TO STATE A CLAIM, N. GRIFFITH, et al., FAILURE TO PROSECUTE, AND 13 FAILURE TO COMPLY WITH A COURT Defendants. ORDER 14 (ECF NOS. 1 & 13) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 TWENTY-ONE DAYS 17 18 Ross Wardlaw (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the complaint commencing this action on June 18, 2019. (ECF No. 1). 21 On October 21, 2019, the Court screened Plaintiff’s complaint and found that it failed to state a 22 claim. (ECF No. 13). The Court gave Plaintiff thirty days from the date of service of the order 23 to file an amended complaint or to notify the Court that he wants to stand on his complaint, 24 subject to the Court issuing findings and recommendations to the district judge consistent with 25 the screening order. (Id. at 8). The Court warned Plaintiff that “[f]ailure to comply with this 26 order may result in the dismissal of this action.” (Id.) 27 The thirty-day period has expired, and Plaintiff has not filed an amended complaint or 28 otherwise responded to the Court’s order. Accordingly, for the reasons described in the 1 screening order (ECF No. 13), the Court will recommend that Plaintiff’s case be dismissed for 2 failure to state a claim. The Court will also recommend that Plaintiff’s case be dismissed for 3 failure to comply with a court order and failure to prosecute. 4 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 5 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 6 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 7 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 8 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 9 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 10 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 11 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 12 this factor weighs in favor of dismissal. 13 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 14 determine whether the delay in a particular case interferes with docket management and the 15 public interest…. It is incumbent upon the Court to manage its docket without being subject to 16 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond 17 to the Court’s screening order. This failure to respond is delaying the case and interfering with 18 docket management. Therefore, the second factor 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 “delay 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 comply with a court order and to 23 prosecute this case that is causing delay. Therefore, the third factor weighs in favor of 24 dismissal. 25 As for the availability of lesser sanctions, at this stage in the proceedings there is little 26 available to the Court which would constitute a satisfactory lesser sanction while protecting the 27 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s 28 incarceration and in forma pauperis status, monetary sanctions are of little use. And, given the 1 || stage of these proceedings, the preclusion of evidence or witnesses is not available. 2 Finally, because public policy favors disposition on the merits, this factor weighs 3 || against dismissal. Id. 4 After weighing the factors, the Court finds that dismissal with prejudice is appropriate. 5 || Accordingly, the Court HEREBY RECOMMENDS that: 6 1. This action be dismissed, with prejudice, for failure to state a claim, failure to 7 prosecute, and failure to comply with a court order; and 8 2. The Clerk of Court be directed to close this case. 9 These findings and recommendations will be submitted to the United States district 10 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 11 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 12 file written objections with the Court. The document should be captioned “Objections to 13 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 |] objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 |} (9th Cir. 1991)). 17 13 IT IS SO ORDERED. ‘9 |! Dated: _ January 3, 2020 [sf ey — 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28