(PC) Quair v. Robinson ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SAMMY R. QUAIR, Case No. 1:21-cv-01214-DAD-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED WITHOUT PREJUDICE DUE 12 TO PLAINTIFF’S FALURE TO DAVE ROBINSON, et al., PROSECUTE AND FAILURE TO 13 COMPLY WITH A COURT ORDER Defendants. 14 (ECF No. 9) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 Plaintiff Sammy R. Quair, Sr. (“Plaintiff”) is a pretrial detainee proceeding pro se and 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. For the following 19 reasons, the Court recommends that this case be dismissed without prejudice for failure to 20 prosecute and failure to comply with a court order. 21 I. BACKGROUND 22 Plaintiff filed the complaint commencing this action on August 11, 2021. (ECF No. 1). 23 The complaint brings claims against Sheriff Dave Robinson, Well Path (Medical), Commander 24 Mrs. Thomas, Lieutenant T. Day, Lieutenant Mrs. Long, Mr. Tolbert, Mr. Wilson, Mrs. 25 Putnam, Mrs. Fry, and multiple Jane and Jon Does concerning COVID-19 and the unsanitary 26 cells at Kings County Jail. (Id.) 27 On September 24, 2021, the Court entered a screening order finding that the complaint 28 sufficiently stated a cognizable claim for unconstitutional conditions of confinement in 1 violation of the Fourteenth Amendment against Defendant Dave Robinson and Does 1 through 2 10, who were correctional officers at the Kings County Jail from June 14, 2021 through the 3 present with duties to clean the facility. (ECF No. 9.) The Court found that the complaint failed 4 to state any other cognizable claims. (Id.) Plaintiff was given thirty days to either file a First 5 Amended Complaint, notify the Court that he wishes to proceed only on the Fourteenth 6 Amendment claim, or notify the Court that he wishes to stand on his complaint. (Id. at 12.) 7 On October 29, 2021, Plaintiff filed his first request for a thirty-day extension of time to 8 respond to the September 24, 2021 screening order. (ECF No. 10.) The Court granted 9 Plaintiff’s request on November 3, 2021. (ECF No. 11.) On November 5, 2021, Plaintiff filed 10 his second request for an extension of time to respond to the screening order. (ECF No. 13.) On 11 November 12, 2021, the Court entered an order granting the request and extending Plaintiff’s 12 response deadline by an additional 45 days. (ECF No. 15.) On January 7, 2022, and January 13 10, 2022, Plaintiff filed two additional extension requests, but did not specify the deadline he 14 was seeking to extend. (ECF Nos. 17, 19.) The Court construed Plaintiff’s motions as seeking 15 to extend his deadline to respond to the screening order and entered an order on January 25, 16 2022, finding that Plaintiff failed to establish good cause for a further extension. (ECF No. 22.) 17 However, because the response deadline had lapsed, the Court allowed Plaintiff an additional 18 fourteen days to respond to the screening order. (Id.) The Court’s order was served on Plaintiff 19 by mail on January 25, 2022. 20 Plaintiff’s response to the screening order was due on February 11, 2022. To date, 21 Plaintiff has not filed an amended complaint, notified the Court that he wishes to proceed only 22 on the Fourteenth Amendment claim, or notified the Court that he wishes to stand on his 23 complaint. Thus, fur the reasons described below, the Court recommends that this action be 24 dismissed, without prejudice, for Plaintiff’s failure to state a claim upon which relief may be 25 granted, failure to comply with a court order, and failure to prosecute. 26 Plaintiff may file objections to these findings and recommendations within fourteen 27 days from the date of service of this order. 28 1 II. DISCUSSION 2 In determining whether to dismiss [an 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 Pagtalunan, 291 F.3d at 642 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th 10 Cir. 1999)). Accordingly, 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....” Pagtalunan, 291 F.3d at 642. Plaintiff failed to respond 15 to the Court’s screening order. This failure has, and continues to, delay this case and interfere 16 with docket management. Therefore, the second 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.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 19 991). However, “delay inherently increases the risk that witnesses’ memories will fade and 20 evidence will become stale,” id. at 643, and it is Plaintiff’s failure to comply with court orders 21 and to prosecute this case that is causing delay. Therefore, the third factor weighs in favor of 22 dismissal. 23 As for the availability of lesser sanctions, given that Plaintiff has chosen not to 24 prosecute this action and has failed to comply with the Court’s orders, despite being warned 25 that it may be dismissed, there is little available to the Court which would constitute a 26 satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of 27 its scarce resources. Considering Plaintiff’s incarceration and in forma pauperis status, it 28 appears that monetary sanctions are of little use. And given the stage of these proceedings, the 1 || preclusion of evidence or witnesses is not available. 2 Although the Court has discretion to recommend dismissal with prejudice, given the 3 || Court’s finding that the complaint stated a cognizable Fourteenth Amendment claim, the Court 4 || will recommend dismissal without prejudice. Because the dismissal being considered in this 5 || case is without prejudice, the Court is stopping short of using the harshest possible sanction of 6 || dismissal with prejudice. 7 Finally, because public policy favors disposition on the merits, this factor weighs 8 || against dismissal. Jd. 9 After weighing the factors, the Court finds that dismissal without prejudice is 10 || appropriate. 11 I. CONCLUSION AND RECOMMENDATION 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. This case be dismissed, without prejudice, due to Plaintiffs failure to comply 14 with court orders and to prosecute this case; and 15 2. The Clerk of Court be directed to close this case. 16 These findings and recommendations will be submitted to the United States district 17 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 18 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 19 || file written objections with the Court. The document should be captioned “Objections to 20 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 22 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 23 || (9th Cir. 1991)). IT IS SO ORDERED. 25 |! Dated: _ March 1, 2022 [Je heey —— 26 UNITED STATES MAGISTRATE JUDGE 27 28