(PC) Harris v. Singer ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EMMETT JAMES HARRIS, Case No. 1:20-cv-01521-NONE-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 12 v. DISMISSED, WITHOUT PREJUDICE, BECAUSE OF PLAINTIFF’S FAILURE TO 13 DR. METTS, PROSECUTE AND COMPLY WITH THE COURT’S ORDERS 14 Defendant. (ECF Nos. 41, 43) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 18 Plaintiff Emmett James Harris is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action pursuant to 42 U.S.C. § 1983. Because Plaintiff has failed to prosecute 20 this case and comply with the Court’s orders, the Court recommends dismissal of this case 21 without prejudice. 22 I. BACKGROUND 23 Plaintiff filed suit on October 29, 2020, against J. Singer, a correctional officer, and Dr. 24 Metts, alleging excessive force and deliberate indifference to his medical needs. (ECF No. 1, pp. 25 1, 3). The Court screened the complaint on November 4, 2020, and concluded that Plaintiff stated 26 a claim for deliberate indifference to medical needs against Defendant Metts. (ECF No. 8). 27 Plaintiff filed an amended complaint on November 30, 2020, again alleging excessive force and 28 deliberate indifference to his medical needs. (ECF No. 11). This Court issued findings and 1 recommendations on December 3, 2020, concluding that Plaintiff stated only a claim for 2 deliberate indifference to medical needs against Defendant Metts. (ECF No. 12). The district 3 judge adopted the findings and recommendations on February 18, 2021, over Plaintiff’s 4 objections. (ECF No. 15; see ECF No. 14). 5 II. ORDERS FOR SCHEDULING AND DISCOVERY STATEMENT 6 On August 10, 2021, the Court entered an order requiring the parties to file statements 7 regarding scheduling and discovery within thirty days of service of the order. (ECF No. 41). The 8 statements were to identify information helpful for discovery and the scheduling of the case, such 9 as the parties’ claims and/or defenses, the description and location of documents that may be used 10 at trial, and the names and phone numbers of potential witnesses. (Id.). On September 8, 2021, 11 Defendant filed a scheduling and discovery statement. (ECF No. 42). Plaintiff did not file his 12 statement by the deadline or request an extension of time to do so. 13 Accordingly, on September 22, 2021, the Court sua sponte entered an order granting 14 Plaintiff 21 additional days from the date of service of the order to file his statement. (ECF No. 15 43). The Court noted that, “if Plaintiff fails to file his statement within this twenty-one-day 16 period, the Court may issue findings and recommendations to the assigned district judge, 17 recommending that this action be dismissed, without prejudice, for failure to prosecute and failure 18 to comply with court order.” (Id. at 1). The 21-day period for Plaintiff to file his statement has 19 now passed without Plaintiff filing a statement or any request for extension of time to file one. 20 Notably, the last filing in this case by Plaintiff was his June 8, 2021 change of address, in 21 which he informed the Court that he is no longer incarcerated. (ECF No. 33). 22 III. ANALYSIS 23 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 24 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 25 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 26 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 27 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 28 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 1 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 2 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 3 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.” Id. Here, Plaintiff’s failure to file a scheduling and discovery statement as 7 required by the Court’s orders (ECF Nos. 41, 243 and otherwise prosecute this action is delaying 8 the case. Specifically, the statement is an important document for the Court to reference 9 throughout the course of litigation in order to understand how the parties’ view their claims and 10 defenses. Moreover, Plaintiff’s failure to file his statement has delayed this Court’s ability to 11 issue a scheduling order. And without being able to issue a scheduling order, this case is stalled 12 from progressing further with discovery and other case-related deadlines. Also notable is that 13 Plaintiff has not filed anything since June 8, 2021, when he notified the Court of his new address 14 after he released from custody. (See ECF No. 33). Therefore, the second factor weighs in favor of 15 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, 191 F.3d at 991). However, “delay 18 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 19 id. at 643, and it is Plaintiff’s failure to prosecute this case and comply with the Court’s orders 20 that is causing delay and preventing this case from progressing. Therefore, the third factor 21 weighs in favor of dismissal. 22 As for the availability of lesser sanctions, given that Plaintiff has chosen not to prosecute 23 this action and fails to comply with the Court’s orders, despite being warned of possible 24 dismissal, there is little available to the Court which would constitute a satisfactory lesser 25 sanction while protecting the Court from further unnecessary expenditure of its scarce resources. 26 Monetary sanctions are of little use, considering Plaintiff’s in forma pauperis status. And given 27 the stage of these proceedings, the preclusion of evidence or witnesses is not available. 28 Additionally, because the dismissal being considered in this case is without prejudice, the Court is 1 | stopping short of using the harshest possible sanction of dismissal with prejudice. 2 Finally, because public policy favors disposition on the merits, this factor weighs against 3 | dismissal. Jd. 4 | IV. CONCLUSION AND RECOMMENDATIONS 5 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 6 | Accordingly, the Court HEREBY RECOMMENDS that: 7 1. This case be dismissed, without prejudice, because of Plaintiff's failure to 8 || prosecute and comply with the Court’s orders; and 9 2. The Clerk of Court be directed to close this case. 10 These findings and recommendations are submitted to the United States district judge 11 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 12 | (14) days after being served with these findings and recommendations, any party may file written 13 | objections with the court. Such a document should be captioned “Objections to Magistrate 14 || Judge’s Findings and Recommendations.” 15 Any reply to the objections shall be served and filed within fourteen (14) days after 16 | service of the objections. 17 18 IT IS SO ORDERED. 19 | Dated: _ October 22, 2021 [Jee heey □ 0 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28