(PC) Arthur v. Unknown ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL D. ARTHUR, 1:22-cv-00279-GSA-PC 12 Plaintiff, ORDER DIRECTING CLERK TO RANDOMLY ASSIGN A UNITED 13 vs. STATES DISTRICT JUDGE TO THIS CASE 14 UNKNOWN, AND 15 Defendant. FINDINGS AND RECOMMENDINGS 16 THAT THIS CASE BE DISMISSED, WITHOUT PREJUDICE, FOR 17 PLAINTIFF’S FAILURE TO COMPLY WITH COURT ORDER 18 (ECF No. 16.) 19 OBJECTIONS, IF ANY, DUE WITHIN 20 FOURTEEN (14) DAYS 21 22 Michael D. Arthur (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action under 42 U.S.C. § 1983. On March 7, 2022, Plaintiff filed a complaint 24 styled as a letter-to-the-court at the United States District Court for the Central District of 25 California, which was opened as a new case. (ECF No. 1.) On March 8, 2022, the case was 26 transferred to the Eastern District of California. (ECF No. 4.) 27 On June 16, 2022, the Court issued an order requiring Plaintiff to file a First Amended 28 Complaint on the Court’s form within thirty days. (ECF No. 16.) Plaintiff has requested and 1 been granted four extensions of time in which to file the First Amended Complaint. (ECF Nos. 2 17, 18, 19, 20, 21, 22, 23, 25). The Court’s most recent order, issued on December 7, 2022, 3 responded to Plaintiff’s fourth motion for extension of time and granted Plaintiff an extension of 4 time until March 10, 2023 to file the First Amended Complaint. (ECF No. 25.) This fourth 5 deadline has now expired and Plaintiff has neither filed a First Amended Complaint nor requested 6 additional time to do so. 7 II. FAILURE TO COMPLY WITH COURT ORDER 8 In determining whether to dismiss this action for failure to comply with the directives set 9 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 10 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 11 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 12 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 13 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 14 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 15 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 16 action has been pending since March 7, 2022. Plaintiff’s failure to respond to the Court’s order 17 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 18 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 19 order. Thus, both the first and second factors weigh in favor of dismissal. 20 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 21 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 22 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 23 is Plaintiff’s failure to file an amended complaint on the Court’s form that is causing delay. 24 Therefore, the third factor weighs in favor of dismissal. 25 As for the availability of lesser sanctions, at this stage in the proceedings there is little 26 available to the Court which would constitute a satisfactory lesser sanction while protecting the 27 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 28 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 1 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 2 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 3 of dismissal with prejudice. 4 Finally, because public policy favors disposition on the merits, this factor will always 5 weigh against dismissal. Id. at 643. 6 III. CONCLUSION, ORDER, AND RECOMMENDATIONS 7 A. ORDER 8 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign 9 a United States District Judge to this case. 10 B. RECOMMENDATIONS 11 The Court HEREBY RECOMMENDS that this case be dismissed, without prejudice, 12 based on Plaintiff’s failure to obey the Court’s order issued on December 7, 2022. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 15 (14) days after the date of service of these findings and recommendations, Plaintiff may file 16 written objections with the court. Such a document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 18 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 19 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 20 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22 23 Dated: March 16, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28