(PC) Roberts v. Singh ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ROBERTS, 1:20-cv-00074-GSA-PC 12 Plaintiff, ORDER FOR THE CLERK OF COURT TO RANDOMLY ASSIGN A UNITED 13 vs. STATES DISTRICT JUDGE TO THIS ACTION 14 K. SINGH, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. TO DISMISS CASE FOR FAILURE TO OBEY COURT ORDER 16 (ECF No. 23.) 17 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 18 19 20 21 22 David Roberts (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 24 commencing this action on January 9, 2020, at the Sacramento Division of the U.S. District Court 25 for the Eastern District of California. (ECF No. 1.) On January 15, 2020, the case was transferred 26 to this court. 27 On March 25, 2021, the court screened the Complaint and issued an order requiring 28 Plaintiff to either file a First Amended Complaint or notify the court that he wishes to proceed 1 only with the excessive force claim found cognizable by the court against defendant C/O K. 2 Singh, within thirty days. (ECF No. 23.) The thirty-day time period has now expired, and 3 Plaintiff has not filed a First Amended Complaint, notified the court that he wishes to proceed 4 with the excessive force claim, or otherwise responded to the court’s order. Therefore, it will be 5 recommended that this case be dismissed for Plaintiff’s failure to comply with the court’s order. 6 The Clerk shall be directed to randomly assign a United States District Judge to this action. 7 In determining whether to dismiss this action for failure to comply with the directives set 8 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 9 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 10 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 11 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 12 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 13 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 14 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 15 action has been pending since January 9, 2020. Plaintiff’s failure to respond to the Court’s order 16 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 17 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 18 orders. Thus, both the first and second factors weigh 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. (citing Yourish at 991). However, “delay inherently 21 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 22 is Plaintiff’s failure to file an amended complaint or notify the court he wishes to proceed with 23 the excessive force claim 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. Monetary sanctions in this 28 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 1 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 2 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 3 of dismissal with prejudice. 4 Finally, because public policy favors disposition on the merits, this factor will always 5 weigh against dismissal. Id. at 643. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The Clerk of Court shall randomly assign a United States District Judge to this 8 action; and 9 2. The Court HEREBY RECOMMENDS that this action be dismissed based on 10 Plaintiff’s failure to obey the Court’s order issued on March 25, 2021. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days after the date of service of these findings and recommendations, Plaintiff may file 14 written objections with the court. Such a document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 17 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 18 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20 21 Dated: May 17, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28