(PC) Chavez v. Kings County ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PABLO CHAVEZ, Case No. 1:20-cv-00369-AWI-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE KINGS COUNTY, et al., TO COMPLY WITH COURT ORDERS 13 AND TO PROSECUTE THIS CASE Defendants. 14 (ECF Nos. 32 & 35) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 Pablo Chavez (“Plaintiff”) is a former prisoner proceeding pro se and in forma pauperis 18 in this civil rights action filed pursuant to 42 U.S.C. § 1983. 19 On March 1, 2021, the Court issued an order requiring the parties to submit scheduling 20 and discovery statements within thirty days. (ECF No. 32). On March 31, 2021, Defendants 21 filed their scheduling and discovery statement. (ECF No. 34). Plaintiff did not file his 22 statement, and his deadline to do so passed. Accordingly, on April 14, 2021, the Court directed 23 Plaintiff to file his statement. (ECF No. 35). Plaintiff was warned that “[f]ailure to comply 24 with this order may result in the dismissal of this action.” (Id.). 25 On May 3, 2021, the Court granted Plaintiff an extension of time, giving him until June 26 9, 2021, to file his statement. (ECF No. 37, pgs. 2-3). This extended deadline has passed, and 27 Plaintiff once again failed to file his statement. 28 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 1 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 2 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 3 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 4 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 5 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 6 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 7 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 8 this factor weighs in favor of dismissal. 9 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 10 determine whether the delay in a particular case interferes with docket management and the 11 public interest…. It is incumbent upon the Court to manage its docket without being subject to 12 routine noncompliance of litigants....” Id. Here, Plaintiff’s failure to file a scheduling 13 conference statement as required by the Court’s orders and to otherwise prosecute this action is 14 delaying the case. Specifically, the scheduling statement is an important document for the 15 Court to use in making the schedule in this case. It also includes important information for the 16 parties, such as “the location of potentially relevant documents,” and “when the parties will be 17 prepared to participate in a settlement conference.” Plaintiff’s failure to file his statement has 18 delayed this Court’s ability to issue a scheduling order for almost three months already, and 19 Plaintiff still has not filed his statement. And without being able to issue a scheduling order, 20 this case is stalled from progressing further with discovery and other case-related deadlines. 21 Therefore, the second factor weighs in favor of dismissal. 22 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 23 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 24 inherently increases the risk that witnesses’ memories will fade and evidence will become 25 stale,” id. at 643, and it is Plaintiff’s failure to comply with court orders and to prosecute this 26 case that is causing delay and preventing this case from progressing. Therefore, the third factor 27 weighs in favor of dismissal. 28 As for the availability of lesser sanctions, given that Plaintiff has chosen not to 1 prosecute this action and has failed to comply with the Court’s orders, despite being warned of 2 possible dismissal, there is little available to the Court which would constitute a satisfactory 3 lesser sanction while protecting the Court from further unnecessary expenditure of its scarce 4 resources. Considering Plaintiff’s incarceration and in forma pauperis status, it appears that 5 monetary sanctions are of little use. And given the stage of these proceedings, the preclusion of 6 evidence or witnesses is not available. Additionally, because the dismissal being considered in 7 this case is without prejudice, the Court is stopping short of using the harshest possible sanction 8 of dismissal with prejudice. 9 Finally, because public policy favors disposition on the merits, this factor weighs 10 against dismissal. Id. 11 After weighing the factors, the Court finds that dismissal without prejudice is 12 appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 13 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 14 comply with court orders and to prosecute this case; and 15 2. The Clerk of Court be directed to close this case. 16 These findings and recommendations are submitted to the United States district judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 18 (14) days after being served with these findings and recommendations, any party may file 19 written objections with the court. Such a document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 21 served and filed within fourteen (14) days after service of the objections. 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 The parties are advised that failure to file objections within the specified time may 2 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 3 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. Dated: _ June 28, 2021 [see hey 7 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