(PC) Hill v. Corcoran State Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 D’VAUGHN CORTEZ HILL, Case No. 1:23-cv-00870-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE 13 v. DISMISSED WITHOUT PREJUDICE FOR FAILURE TO COMPLY WITH COURT 14 CORCORAN STATE PRISONER, et al., ORDERS AND PROSECUTE 15 Defendants. ORDER DIRECTING CLERK’S OFFICE TO 16 ASSIGN A DISTRICT JUDGE 17 D’Vaughn Cortez Hill (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On August 21, 2023, the Court screened Plaintiff’s complaint and found that Plaintiff fails 20 to state any cognizable claims. (ECF No. 13). The Court gave Plaintiff thirty days to either 1) file 21 an amended complaint or 2) file a notice stating that he wants to stand on this complaint and have 22 it reviewed by a district judge. (Id., p. 8). The Court’s screening order also stated that “[f]ailure to 23 comply with this order may result in the dismissal of this action.” (Id.) 24 Plaintiff has not yet filed either an amended complaint or a notice indicating that he 25 wishes to stand on his complaint, and the time to do so has passed. Therefore, the Court will 26 recommend that this case be dismissed, without prejudice, because of Plaintiff’s failure to 27 prosecute this case and to comply with a Court order. 28 1 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 2 comply with a court 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 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 5 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 6 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” Id. 7 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 8 factor weighs in favor of dismissal. 9 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 10 determine whether the delay in a particular case interferes with docket management and the 11 public interest…. It is incumbent upon the Court to manage its docket without being subject to 12 routine noncompliance of litigants....” Id. Plaintiff has failed to file an amended complaint or 13 notice or otherwise comply with the Court’s order. This failure is delaying this case and 14 interfering with docket management. Therefore, the second factor weighs in favor of dismissal. 15 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 16 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 17 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 18 id. at 643, and it is Plaintiff’s failure to file to file an amended complaint or notice that is causing 19 delay and preventing this case from progressing. The Court is unable to proceed in this case 20 without an amended complaint or Plaintiff’s notice that he wishes to stand on his complaint, and 21 the case cannot proceed without Plaintiff. Therefore, the third factor weighs in favor of dismissal. 22 As for the availability of lesser sanctions, given that Plaintiff has stopped prosecuting this 23 case, despite being warned of possible dismissal, there is little available to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 24 expenditure of its scarce resources. Considering Plaintiff’s in forma pauperis application, it 25 appears that monetary sanctions are of little use. And as Plaintiff has stopped prosecuting this 26 case, excluding evidence would be a meaningless sanction. Additionally, because the dismissal 27 being considered in this case is without prejudice, the Court is stopping short of using the harshest 28 1 | possible sanction of dismissal with prejudice. 2 Finally, because public policy favors disposition on the merits, this factor weighs against 3 | dismissal. Jd. 4 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 5 | Accordingly, the Court HEREBY RECOMMENDS that: 6 1. This case be dismissed, without prejudice, because of Plaintiff's failure to comply with a 7 court order and prosecute this case; and 8 2. The Clerk of Court be directed to close this case. 9 These findings and recommendations will be submitted to the United States district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 13 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 Additionally, IT IS ORDERED that the Clerk’s Office assign a district judge to this case. 16 IT IS SO ORDERED. 17 18 Dated: _ October 11, 2023 [sf ey 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28