(PC) Leslie v. Claborn ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DESHAWN DESHAY LESLIE, 1:19-cv-00366-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 DISMISS CASE, WITHOUT PREJUDICE, v. FOR FAILURE TO OBEY COURT ORDER 14 (ECF No. 17.) JEREMY CLABORNE, et al., 15 OBJECTIONS, IF ANY, DUE IN FOURTEEN Defendants. (14) DAYS 16 17 18 19 20 On July 28, 2020, the Court issued an order dismissing Plaintiff’s First Amended 21 Complaint for violation of Rules 18 and 20, with leave to file a Second Amended Complaint 22 within thirty days. (ECF No. 17.) The thirty-day time period has now expired and Plaintiff has 23 not filed a Second Amended Complaint or otherwise responded to the Court’s order. 24 In determining whether to dismiss this action for failure to comply with the directives set 25 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 26 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 27 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 28 1 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 2 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 3 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 4 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 5 action has been pending since March 19, 2019. Plaintiff’s failure to respond to the Court’s order 6 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 7 continue to expend its scarce resources assisting a litigant who will not file an amended complaint 8 so his case can proceed. Thus, both the first and second factors weigh in favor of dismissal. 9 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 10 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 11 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 12 is Plaintiff’s failure to file an amended complaint that is causing delay. Therefore, the third factor 13 weighs in favor of dismissal. 14 As for the availability of lesser sanctions, at this stage in the proceedings there is little 15 available to the Court which would constitute a satisfactory lesser sanction while protecting the 16 Court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 17 prisoner proceeding pro se and in forma pauperis, the Court finds monetary sanctions of little 18 use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not 19 available. However, inasmuch as the dismissal being considered in this case is without prejudice, 20 the Court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 21 Finally, because public policy favors disposition on the merits, this factor will always 22 weigh against dismissal. Id. at 643. 23 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, 24 without prejudice, based on Plaintiff’s failure to obey the Court’s order of July 28, 2020. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 27 (14) days after being served with these findings and recommendations, Plaintiff may file written 28 objections with the Court. Such a document should be captioned “Objections to Magistrate 1 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 2 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 3 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 4 1991)). 5 IT IS SO ORDERED. 6 7 Dated: September 21, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28