(PC) Keene v. Toor ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN SCOTT KEENE, Case No. 1:17-cv-01169-NONE-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THE COURT DISMISS THE CASE 13 v. FOR PLAINTIFF’S FAILURES TO 14 KIRAN TOOR, et al., PROSECUTE AND TO COMPLY WITH COURT ORDERS 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 18 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 19 under 42 U.S.C. § 1983. On February 21, 2020, defendants filed a motion for summary 20 judgment. ECF No. 38. On March 23, 2020, plaintiff filed a motion for a 90-day extension to 21 file his opposition. The court granted plaintiff’s unusually long extension. ECF No. 41. 22 However, instead of filing an opposition, plaintiff filed a second motion for a 90-day extension. 23 ECF No. 42. The court granted plaintiff’s extension in part, allowing another 45 days for plaintiff 24 to oppose summary judgment. Plaintiff did not file an opposition. On September 2, the court 25 ordered plaintiff to show cause why this case should not be dismissed for plaintiff’s failures to 26 prosecute and comply with court orders. ECF No. 46. Plaintiff responded by seeking to have his 27 case dismissed without prejudice on September 28. ECF No. 47. Plaintiff explains that he no 28 longer wishes to pursue litigation in this case. 1 The court may dismiss a case for plaintiff’s failure to prosecute or failure to comply with a 2 court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 3 683, 689 (9th Cir. 2005). Such dismissal can be a harsh penalty, but a district court has duties to 4 resolve disputes expeditiously and to avoid needless burden for the parties. See Fed. R. Civ. P. 1; 5 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 6 In considering whether to dismiss the case for failure to prosecute, a court ordinarily 7 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 8 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 9 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 10 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 11 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they 12 are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products 13 Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 14 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 15 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California 16 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of 17 dismissal. 18 Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently 19 prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay inherently 20 increases the risk that witnesses’ memories will fade and evidence will become stale, id. at 643, 21 and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the third factor 22 weighs in favor of dismissal. 23 As for the availability of lesser sanctions, at this stage in the proceedings there is little 24 available to the court that would constitute a satisfactory lesser sanction while protecting the court 25 from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, 26 considering plaintiff’s incarceration and in forma pauperis status, and the preclusion of evidence 27 or witnesses is not available. While dismissal is generally a harsh sanction, plaintiff has indicated 28 wOoOw VLE YIN INE VR tO POO Oe OY VI 1 | that he no longer wishes to prosecute this case—and that he in fact himself seeks dismissal. ECF 2 | No. 47. 3 Finally, because public policy favors disposition on the merits, this factor weighs against 4 | dismissal. Id. 5 After weighing the factors, including the court’s need to manage its docket—and 6 | plaintiff’s stated desire for dismissal—the court finds that dismissal is appropriate. The court will 7 || recommend dismissal without prejudice. 8 Findings and Recommendations 9 The court recommends 10 1. that the case be dismissed without prejudice for plaintiff’s failures to prosecute 11 and to comply with court orders, and 12 2. that the motion for summary judgment, ECF No. 38, be denied as moot. 13 The undersigned submits these findings and recommendations to the U.S. district judge 14 | presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen 15 | days of the service of the findings and recommendations, the parties may file written objections to 16 | the findings and recommendations with the court and serve a copy on all parties. The document 17 | containing the objections must be captioned “Objections to Magistrate Judge’s Findings and 18 | Recommendations.” The presiding district judge will then review the findings and 19 | recommendations under 28 U.S.C. § 636(b)(1)(C). 20 IT IS SO ORDERED. WN prs senn Cato _ Dated: _ September 30, 2020 23 UNIT#D STATES MAGISTRATE JUDGE 24 25 | No. 204 26 27 28