(PC) Oliver v. Feiffer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TREMAINE OLIVER, Case No. 1:19-cv-00136-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE 13 v. DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, FAILURE TO 14 C. FEIFFER, et al., PROSECUTE, AND FAILURE TO COMPLY 15 Defendants. WITH A COURT ORDER 16 (ECF Nos. 1 & 17) 17 OBJECTIONS, IF ANY, DUE WITHIN 21 DAYS 18 19 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 20 21 Tremaine Oliver (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing 23 this action on January 31, 2019. (ECF No. 1). 24 On October 1, 2019, the undersigned issued a screening order finding no cognizable 25 claims in Plaintiff’s complaint and ordering Plaintiff to “a. File a First Amended Complaint, which 26 the Court will screen in due course; or b. Notify the Court in writing that he wants to stand on his 27 complaint, in which case the Court will issue findings and recommendations to a district judge 28 consistent with this order.” (ECF No. 17, p. 14). The Court also warned Plaintiff that “failure to 1 comply with this order may result in the dismissal of this action.” (Id.) 2 It has been more than three months since the issuance of the screening order and Plaintiff 3 has failed to file an amended complaint or indicate that he wishes to stand on his complaint as 4 drafted. Accordingly, for the reasons set forth in the screening order (ECF No. 17), the Court will 5 recommend that Plaintiff’s case be dismissed for failure to state a claim upon which relief may be 6 granted. The Court will also recommend that Plaintiff’s case be dismissed for failure to comply 7 with a Court order and failure to prosecute. 8 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 9 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 10 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 11 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 12 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 13 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 14 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 15 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 16 this factor weighs in favor of dismissal. 17 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 18 determine whether the delay in a particular case interferes with docket management and the 19 public interest…. It is incumbent upon the Court to manage its docket without being subject to 20 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond to 21 the Court’s screening order. This failure to respond is delaying the case and interfering with 22 docket management. Therefore, the second factor weighs in favor of dismissal. 23 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 24 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay 25 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 26 id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this case that 27 is causing delay. Therefore, the third factor weighs in favor of dismissal. 28 As for the availability of lesser sanctions, at this stage in the proceedings there is little 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 Plaintiffs 3 || incarceration and in forma pauperis status, monetary sanctions are of little use. And, given the 4 | stage of these proceedings, the preclusion of evidence or witnesses is not available. 5 Finally, because public policy favors disposition on the merits, this factor weighs against 6 | dismissal. Id. 7 After weighing the factors, the Court finds that dismissal with prejudice is appropriate. g | Accordingly, the Court HEREBY RECOMMENDS that: 9 1. This action be dismissed, with prejudice, for failure to state a claim, failure to 10 prosecute, and failure to comply with a court order; and 11 2. The Clerk of Court be directed to close this case. 12 These findings and recommendations will be submitted to the United States district judge 13 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one 14 | (1) days after being served with these findings and recommendations, Plaintiff may file written 15 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 17 || Specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 18 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district judge 20 || to this case. 21 0 IT IS SO ORDERED. 23 | Dated: _ January 10, 2020 [see ey UNITED STATES MAGISTRATE JUDGE 25 26 27 28