(PC) Jawad v. Soto ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RYAN J. JAWAD, Case No. 1:22-cv-00238-AWI-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE TO M. SOTO, COMPLY WITH COURT ORDERS AND TO 13 PROSECUTE THIS CASE Defendant. 14 (ECF Nos. 26 & 31) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 18 Ryan Jawad (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On November 9, 2022, the Court issued an order requiring the parties to submit 21 scheduling and discovery statements within thirty days. (ECF No. 26). On December 15, 22 2022, Defendant filed his scheduling and discovery statement. (ECF No. 28). Plaintiff did not 23 file a scheduling and discovery statement, and his deadline to do so passed. 24 Accordingly, on January 5, 2023, the Court gave Plaintiff an additional twenty-one days 25 to file his scheduling and discovery statement. (ECF No. 31). Plaintiff was warned that 26 “[f]ailure to comply with this order may result in the dismissal of this action.” (Id. at 2). This 27 extended deadline passed, and Plaintiff once again failed to file his statement. 28 Therefore, the Court will recommend that this case be dismissed, without prejudice, for 1 failure to comply with Court orders and to prosecute this case. 2 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 3 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 4 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 5 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 6 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 7 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 8 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 9 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 10 this factor weighs in favor of dismissal. 11 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 12 determine whether the delay in a particular case interferes with docket management and the 13 public interest…. It is incumbent upon the Court to manage its docket without being subject to 14 routine noncompliance of litigants....” Id. Plaintiff’s failure to file a scheduling and discovery 15 statement is delaying this case and interfering with docket management. Therefore, the second 16 factor weighs in favor of dismissal. 17 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 18 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 19 inherently increases the risk that witnesses’ memories will fade and evidence will become 20 stale,” id. at 643, and it is Plaintiff’s failure to comply with court orders and to prosecute this 21 case that is causing delay and preventing this case from progressing. Therefore, the third factor 22 weighs in favor of dismissal. 23 As for the availability of lesser sanctions, given that Plaintiff has chosen to stop 24 prosecuting this action and has failed to comply with court orders, despite being warned of 25 possible dismissal, there is little available to the Court which would constitute a satisfactory 26 lesser sanction while protecting the Court from further unnecessary expenditure of its scarce 27 resources. Considering Plaintiff’s incarceration and in forma pauperis status, it appears that 28 monetary sanctions are of little use. And as Plaintiff has stopped prosecuting this case, 1 || excluding evidence would be a meaningless sanction. Additionally, because the dismissal 2 || being considered in this case is without prejudice, the Court is stopping short of using the 3 || harshest possible sanction of dismissal with prejudice. 4 Finally, because public policy favors disposition on the merits, this factor weighs 5 || against dismissal. Id. 6 After weighing the factors, the Court finds that dismissal without prejudice is 7 || appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 8 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 9 comply with court orders and to prosecute this case; and 10 2. The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the United States district judge 12 |] assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 13 || (14) days after being served with these findings and recommendations, any party may file 14 || written objections with the court. Such a document should be captioned “Objections to 15 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 16 || served and filed within fourteen (14) days after service of the objections. The parties are 17 || advised that failure to file objections within the specified time may result in the waiver of rights 18 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 19 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. 22 |! Dated: _ February 9, 2023 [Jee ey —— 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28