(PC) Barnhardt v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS J. BARNHARDT, 1:23-cv-01030-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 v. JUDGE TO THIS CASE 14 ALLISON, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 16 DISMISSED WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH 17 COURT ORDER 18 (ECF No. 8.) 19 OBJECTIONS, IF ANY, DUE BY SEPTEMBER 29, 2023 20 21 22 I. BACKGROUND 23 Marcus J. Barnhardt (“Plaintiff”) is a state prisoner proceeding pro se and in forma 24 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. 25 On July 19, 2023, the Court issued an order requiring Plaintiff to file an amended 26 complaint clarifying venue issues for the claims contained in the complaint, and to do so by 27 August 25, 2023. (ECF No. 8.) The August 25, 2023 deadline has passed and Plaintiff has not 28 filed an amended complaint or otherwise responded to the Court’s order. 1 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT’S ORDER 2 In determining whether to dismiss this action for failure to comply with the directives set 3 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 4 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 639, 7 642 (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)), and here, the 10 action has been pending since July 11, 2023. Plaintiff’s failure to respond to the Court’s order 11 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 12 continue to expend its scarce resources assisting a litigant who will not file an amended complaint 13 to clarify his claims. Thus, both the first and second factors weigh in favor of dismissal. 14 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 15 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 16 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 17 is Plaintiff's failure to file an amended complaint that is causing delay. Therefore, the third factor 18 weighs in favor of dismissal. 19 As for the availability of lesser sanctions, at this stage in the proceedings there is little 20 available to the Court that would constitute a satisfactory lesser sanction while protecting the 21 Court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 22 prisoner proceeding pro se and in forma pauperis, the Court finds monetary sanctions of little 23 use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not 24 available. However, inasmuch as the dismissal being considered in this case is without prejudice, 25 the Court is stopping short of issuing the harshest possible sanction of dismissal with prejudice. 26 Finally, because public policy favors disposition on the merits, this factor will always weigh 27 against dismissal. Id. at 643. 28 /// 1 III. ORDER, RECOMMENDATIONS, AND CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a 3 United States District Judge to this case; and 4 The Court HEREBY RECOMMENDS that this case be dismissed, without prejudice, 5 based on Plaintiff’s failure to comply with the Court’s order issued on July 19, 2023. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or before 8 September 29, 2023, Plaintiff may file written objections with the Court. Such a document 9 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 10 Plaintiff is advised that failure to file objections within the specified time may result in the waiver 11 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter 12 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 IT IS SO ORDERED. 14 15 Dated: September 8, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28