(PC) Maraglino v. Espinosa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOROTHY GRACE MARIE 1:20-cv-00825-GSA-PC MARAGLINO, 12 ORDER FOR CLERK TO RANDOMLY Plaintiff, ASSIGN A UNITED STATES DISTRICT 13 JUDGE TO THIS CASE v. 14 AND J. ESPINOSA, et al., 15 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE Defendants. 16 DISMISSED FOR FAILURE TO OBEY COURT ORDER 17 (ECF No. 23.) 18 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 19 20 Dorothy Grace Marie Maraglino (“Plaintiff”) is a state prisoner proceeding pro se and in 21 forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On June 15, 2020, 22 Plaintiff filed the Complaint commencing this action. (ECF No. 1.) 23 On September 13, 2021, the court dismissed the Complaint for failure to state a claim, 24 with leave to file an amended complaint within thirty days. (ECF No. 10.) The thirty-day time 25 period has now expired and Plaintiff has not filed an amended complaint or otherwise responded 26 to the court’s order. Therefore, it will be recommended that this case be dismissed for Plaintiff’s 27 failure to comply with the court’s order. The Clerk shall be directed to randomly assign a United 28 States District Judge to this action. 1 In determining whether to dismiss this action for failure to comply with the directives set 2 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 3 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 4 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 5 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 6 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 7 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 8 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 9 action has been pending since June 15, 2020. Plaintiff’s failure to respond to the Court’s order 10 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 11 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 12 orders and litigate her case. Thus, both the first and second factors weigh in favor of dismissal. 13 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 14 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 15 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 16 is Plaintiff’s failure to file an amended complaint that is causing delay. Therefore, the third factor 17 weighs in favor of dismissal. 18 As for the availability of lesser sanctions, at this stage in the proceedings there is little 19 available to the Court which would constitute a satisfactory lesser sanction while protecting the 20 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 21 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 22 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 23 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 24 of dismissal with prejudice. 25 Finally, because public policy favors disposition on the merits, this factor will always 26 weigh against dismissal. Id. at 643. 27 Accordingly, the Clerk of Court IS HEREBY ORDERED to randomly assign a United 28 States District Judge to this action; 1 and 2 Based on the foregoing, the Court HEREBY RECOMMENDS that: 3 1. This action be dismissed, without prejudice, based on Plaintiff’s failure to obey 4 the Court’s order issued on September 13, 2021; and 5 2. The Clerk be directed to close this case. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 8 (14) days after the date of service of these findings and recommendations, Plaintiff may file 9 written objections with the court. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 12 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 13 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: November 5, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28