(PC) Collins v. McCabe ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARNELL C. COLLINS, 1:19-cv-00458-AWI-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, FOR 14 PLAINTIFF’S FAILURE TO COMPLY WITH CONALL McCABE, et al., COURT ORDER 15 (ECF No. 36.) Defendants. 16 OBJECTIONS, IF ANY, DUE IN 14 DAYS 17 18 19 Larnell C. Collins (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. On April 9, 2019, Plaintiff filed the 21 Complaint commencing this action. (ECF No. 1.) 22 On October 30, 2021, Defendants filed a motion for summary judgment, which is 23 pending. (ECF No. 29.) Plaintiff was required to file a response to the motion for summary 24 judgment within 21 days but did not do so. On September 30, 2021, Plaintiff filed a motion for 25 extension of time to file the response, the court granted Plaintiff a 90-day extension of time. 26 (ECF Nos. 31, 32.) On January 24, 2022, Plaintiff filed another motion for extension of time, 27 and on January 25, 2022, the court granted him 30 more days. (ECF Nos. 35, 36.) The 30-day 28 1 deadline for Plaintiff to file his response has expired and Plaintiff has neither requested an 2 additional extension of time nor filed a response to the motion for summary judgment. Therefore, 3 it will be recommended that this case be dismissed for Plaintiff’s failure to comply with the 4 court’s order. 5 In determining whether to dismiss this action for failure to comply with the directives set 6 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 7 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 8 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 9 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 10 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 11 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 12 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 13 action has been pending since April 9, 2019. Plaintiff’s failure to respond to the Court’s order 14 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 15 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 16 orders. Thus, both the first and second factors weigh 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 at 991). However, “delay inherently 19 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 20 is Plaintiff’s failure to file an amended complaint or notify the court he wishes to proceed with 21 the excessive force claim that is causing delay. Therefore, the third factor weighs in favor of 22 dismissal. 23 As for the availability of lesser sanctions, at this stage in the proceedings there is little 24 available to the Court which would constitute a satisfactory lesser sanction while protecting the 25 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 26 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 27 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 28 1 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 2 of dismissal with prejudice. 3 Finally, because public policy favors disposition on the merits, this factor will always 4 weigh against dismissal. Id. at 643. 5 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed based 6 on Plaintiff’s failure to obey the Court’s order issued on January 25, 2022. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 9 (14) days after the date of service of these findings and recommendations, Plaintiff may file 10 written objections with the court. Such a document should be captioned “Objections to 11 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 12 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 13 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 14 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 17 Dated: March 8, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28