(PC) Erpinar v. Santos ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JASON ERPINAR, Case No. 1:19-cv-01288-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE SANTOS, et al., TO COMPLY WITH A COURT ORDER 13 AND FAILURE TO PROSECUTE Defendants. 14 (ECF No. 10) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 ORDER DIRECTING CLERK TO ASSIGN 17 DISTRICT JUDGE 18 Jason Erpinar (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the complaint commencing this action on September 16, 2019. (ECF No. 21 1). On April 10, 2020, the Court screened Plaintiff’s complaint and found that it stated a 22 cognizable claim. (ECF No. 10). The Court gave Plaintiff thirty days from the date of service 23 of the order to either: “a. File a First Amended Complaint, which the Court will screen in due 24 course; b. Notify the Court in writing that he does not want to file an amended complaint, and 25 instead wants to proceed only on his claim for failure to protect in violation of the Eight 26 Amendment against John Doe, a tower officer at CCI; or c. Notify the Court in writing that he 27 wishes to stand on his complaint without further amendment, in which case the Court will issue 28 findings and recommendations to a district judge consistent with this order.” (Id. at 8-9). 1 Plaintiff was warned that “[f]ailure to comply with this order may result in the dismissal of this 2 action.” (Id. at 9). 3 On June 11, 2020, the Court granted Plaintiff’s second motion for extension of time, 4 giving Plaintiff an additional thirty days to respond to the Court’s screening order. (ECF No. 5 14). This thirty-day period has expired, and Plaintiff has not filed an amended complaint or 6 otherwise responded to the Court’s order. Accordingly, the Court will recommend that this 7 case be dismissed, without prejudice, for failure to comply with a court order and failure to 8 prosecute. 9 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 10 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 11 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 12 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 13 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 14 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 15 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 16 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 17 this factor weighs in favor of dismissal. 18 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 19 determine whether the delay in a particular case interferes with docket management and the 20 public interest…. It is incumbent upon the Court to manage its docket without being subject to 21 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond 22 to the Court’s screening order. This failure to respond is delaying the case and interfering with 23 docket management. Therefore, the second factor weighs in favor of dismissal. 24 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 25 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, 26 “delay inherently increases the risk that witnesses’ memories will fade and evidence will 27 become stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to 28 prosecute this case that is causing delay. Therefore, the third factor weighs in favor of 1 dismissal. 2 As for the availability of lesser sanctions, at this stage in the proceedings there is little 3 available to the Court which would constitute a satisfactory lesser sanction while protecting the 4 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s 5 incarceration and in forma pauperis status, it appears that monetary sanctions are of little use. 6 And, given the stage of these proceedings, the preclusion of evidence or witnesses is not 7 available. Additionally, because the dismissal being considered in this case is without 8 prejudice, the Court is stopping short of using the harshest possible sanction of dismissal with 9 prejudice. 10 Finally, because public policy favors disposition on the merits, this factor weighs 11 against dismissal. Id. 12 After weighing the factors, the Court finds that dismissal without prejudice is 13 appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 14 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 15 comply with a court order and to prosecute this case; and 16 2. The Clerk of Court be directed to close this case. 17 These findings and recommendations will be submitted to the United States district 18 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 19 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 20 file written objections with the Court.1 The document should be captioned “Objections to 21 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 22 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 23 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 24 (9th Cir. 1991)). 25 \\\ 26 27 1 If, instead of or in addition to objecting, Plaintiff responds to the screening order and adequately 28 explains why he failed to timely respond to the screening order, the Court will vacate these findings and recommendations. wOAoOe 4:40 VV VLOCOOUINMINE ES UMETIOCTI A PIC OT ME Tt 1 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 2 || Judge to this case. 3 IT IS SO ORDERED. > ll Dated: _ August 28, 2020 hey 6 UNITED STATES MAGISTRATE JUDGE 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28