(PC) Chavez v. Kings County ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PABLO MENDOZA CHAVEZ, 1:20-cv-00532-GSA-PC 12 ORDER FOR THE CLERK OF COURT Plaintiffs, TO RANDOMLY ASSIGN A UNITED 13 STATES DISTRICT JUDGE TO THIS vs. ACTION 14 KINGS COUNTY, et al., FINDINGS AND RECOMMENDATIONS 15 TO DISMISS CASE FOR FAILURE TO Defendants. OBEY COURT ORDER, FAILURE TO 16 STATE A CLAIM, AND FAILURE TO PROSECUTE 17 (ECF No. 23.) 18 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 19 20 Pablo Mendoza Chavez (“Plaintiff”) is a Kings County Jail inmate proceeding pro se and 21 in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed 22 the Complaint commencing this action on April 14, 2020. (ECF No. 1.) On July 29, 2021, the 23 court screened the Complaint and dismissed it for failure to state a claim, with leave to amend 24 within thirty days. (ECF No. 6.) The thirty-day time period has now expired and Plaintiff has 25 not filed an amended complaint or otherwise responded to the finding and recommendations.1 26 27 1 On August 16, 2021, the United States Postmaster returned the findings and recommendations to the court with the notation “undeliverable, inmate not here, return to sender.” (Court 28 record.) Plaintiff has not notified the court of any change in his address. Absent such notice, service at a party’s prior address is fully effective. Local Rule 182(f). 1 Therefore, it will be recommended that this case be dismissed for Plaintiff’s failure to comply 2 with the court’s order, failure to state a claim, and failure to prosecute. The Clerk shall be directed 3 to randomly assign a United States District Judge to this action. 4 In determining whether to dismiss this action for failure to comply with the directives set 5 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 6 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 7 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 8 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 9 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 10 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 11 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 12 action has been pending since April 14, 2020. Plaintiff’s failure to respond to the Court’s order 13 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 14 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 15 orders. Thus, both the first and second factors weigh in favor of dismissal. 16 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 17 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 18 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 19 is Plaintiff’s failure to file an amended complaint that is causing delay. Therefore, the third factor 20 weighs in favor of dismissal. 21 As for the availability of lesser sanctions, at this stage in the proceedings there is little 22 available to the Court which would constitute a satisfactory lesser sanction while protecting the 23 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 24 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 25 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 26 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 27 of dismissal with prejudice. 28 /// 1 Finally, because public policy favors disposition on the merits, this factor will always 2 weigh against dismissal. Id. at 643. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Clerk of Court shall randomly assign a United States District Judge to this 5 action; and 6 2. The Court HEREBY RECOMMENDS that this action be dismissed based on 7 Plaintiff’s failure to obey the Court’s order issued on July 29, 2021, failure to prosecute, and 8 failure to state a claim. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 11 (14) days after the date of service of these findings and recommendations, Plaintiff may file 12 written objections with the court. Such a document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18 19 Dated: September 2, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28