(PC) Morris v. Joelson ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LEON E. MORRIS, Case No. 1:20-cv-00165-NONE-EPG (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATIONS, 10 RECOMMENDING THAT: 1) THIS CASE v. BE DISMISSED, WITH PREJUDICE, 11 BECAUSE OF PLAINTIFF’S FAILURE JOELSON, TO COMPLY WITH COURT ORDERS 12 AND TO PROSECUTE THIS CASE; AND Defendant. 2) ALL OUTSTANDING MOTIONS BE 13 DENIED AS MOOT 14 (ECF No. 37) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 Leon Morris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action filed pursuant to 42 U.S.C. § 1983. 19 On August 31, 2020, the Court issued an order setting a scheduling conference, 20 requiring the parties to file scheduling conference statements, and requiring the parties to 21 exchange initial disclosures. (ECF No. 19). The Court attempted to hold the scheduling 22 conference on December 14, 2020. (ECF No. 23). However, Plaintiff did not attend (the Court 23 was informed it was due to a medical issue). (Id.). Plaintiff also failed to file a scheduling 24 conference statement or provide Defendant with his initial disclosures. 25 After the conference, the Court issued another order requiring Plaintiff to provide 26 Defendant with his initial disclosures.1 (ECF No. 24, pgs. 1-2). On May 28, 2021, Defendant 27 28 1 As the Court did not reset the scheduling conference, the Court did not direct Plaintiff to file a scheduling conference statement. 1 filed a motion to modify the scheduling order. (ECF No. 34). According to Defendant, 2 Plaintiff once again failed to provide Defendant with his initial disclosures. (Id. at 4). 3 Additionally, Defendant asserted that Plaintiff failed to respond to Defendant’s written 4 discovery requests. (Id.). 5 Moreover, on May 12, 2021, Defendant filed a motion to dismiss under 28 U.S.C § 6 1915(g), to declare Plaintiff a vexatious litigant, requiring posting of security, and issuance of 7 pre-filing order. (ECF No. 30). Plaintiff’s deadline to respond passed, and Plaintiff failed to 8 respond to the motion. 9 Finally, Plaintiff was transferred to a different institution, and did not file a notice of 10 change of address. Instead, Defendant filed a notice on Plaintiff’s behalf. (See ECF No. 32). 11 As it appeared that Plaintiff stopped prosecuting this case, on June 28, 2021, the Court 12 ordered “that, within thirty (30) days from the date of service of this order, Plaintiff shall show 13 cause why this case should not be dismissed, with prejudice, for failure to comply with court 14 orders and failure to prosecute.” (ECF No. 37, p. 2). The Court warned Plaintiff that if he 15 “fails to file a response[,] the Court will recommend to a district judge that this case be 16 dismissed, with prejudice, for failure to comply with court orders and failure to prosecute.” 17 (Id). The deadline has now passed and Plaintiff failed to file a response.2 18 Accordingly, the Court will recommend that this action be dismissed, with prejudice, 19 for failure to comply with court orders and to prosecute this case. The Court will also 20 recommend that all outstanding motions be denied as moot. 21 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 22 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 23 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 24 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 25 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 26 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 27 28 2 Plaintiff also failed to respond to two motions to compel filed by Defendant on July 30, 2021. 1 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 2 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 3 this factor weighs in favor of dismissal. 4 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 5 determine whether the delay in a particular case interferes with docket management and the 6 public interest…. It is incumbent upon the Court to manage its docket without being subject to 7 routine noncompliance of litigants....” Id. Here, Plaintiff’s failure to obey court orders and to 8 prosecute this case is interfering with docket management and causing delay. Therefore, the 9 second factor weighs in favor of dismissal. 10 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 11 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 12 inherently increases the risk that witnesses’ memories will fade and evidence will become 13 stale,” id. at 643, and it is Plaintiff’s failure to comply with court orders and to prosecute this 14 case that is causing delay. Therefore, the third factor weighs in favor of dismissal. 15 As for the availability of lesser sanctions, given that Plaintiff has chosen not to 16 prosecute this action and has failed to comply with the Court’s orders, despite being warned of 17 possible dismissal with prejudice, there is little available to the Court which would constitute a 18 satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of 19 its scarce resources. Considering Plaintiff’s incarceration and in forma pauperis status, it 20 appears that monetary sanctions are of little use. And as it appears that Plaintiff has decided to 21 stop prosecuting this case (Plaintiff has not filed anything in this case for over a year), 22 excluding evidence would be a meaningless sanction. 23 Finally, because public policy favors disposition on the merits, this factor weighs 24 against dismissal. Id. 25 After weighing the factors, the Court finds that dismissal with prejudice is appropriate. 26 Accordingly, the Court HEREBY RECOMMENDS that: 27 1. This case be dismissed, with prejudice, because of Plaintiff’s failure to comply 28 with court orders and to prosecute this case; 1 2. All outstanding motions be denied as moot; and 2 3. The Clerk of Court be directed to close this case. 3 These findings and recommendations are submitted to the United States district judge 4 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 5 || (14) days after being served with these findings and recommendations, any party may file 6 || written objections with the court. Such a document should be captioned “Objections to 7 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 8 || served and filed within fourteen (14) days after service of the objections. The parties are 9 || advised that failure to file objections within the specified time may result in the waiver of rights 10 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 11 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 3 IT IS SO ORDERED. ‘4 |! Dated: _ August 27, 2021 [Je hey 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28