(PC) Long v. Stanislaus County Sheriffs Detention Center ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KEVIN MICHAEL LONG, Case No. 1:23-cv-00356-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE TO STANISLAUS COUNTY SHERIFF’S COMPLY WITH COURT ORDERS AND 13 DETENTION CENTER, et al., PROSECUTE THIS CASE 14 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 15 ORDER DIRECTING THE CLERK’S 16 OFFICE TO ASSIGN A DISTRICT JUDGE 17 Plaintiff Kevin Long is proceeding pro se in this civil rights action. On March 6, 2023, 18 Plaintiff initiated this action by filing his complaint. (ECF No. 1). Plaintiff also submitted an 19 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2). The case 20 was subsequently transferred from the Sacramento Division. (ECF No. 4). On March 9, 2023, 21 the Court issued an order requiring Plaintiff to refile a completed application or to pay the filing 22 fee, within forty-five days. (ECF No. 6). Because Plaintiff’s application indicated that he was 23 detained at the Public Safety Center, the Court also direct Plaintiff to file a notice with the 24 Court regarding his detention status. (Id.) The Court also warned Plaintiff that failure to comply 25 may result in a recommendation for the dismissal of this action. (Id. at p. 2). The Court’s order 26 was returned as undeliverable. 27 Plaintiff’s deadline to submit a notice regarding his detention status and a new 28 application to proceed in forma pauperis or to pay the filing fee has passed. Plaintiff has not 1 filed such a notice nor has Plaintiff submitted a completed application or paid the requisite 2 filing fee. Accordingly, Plaintiff failed to comply with the Court’s March 9, 2023 order. 3 Therefore, the Court will recommend that this case be dismissed, without prejudice, because of 4 Plaintiff’s failure to prosecute this case. 5 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 6 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 7 in 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 10 639, 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)). Accordingly, 13 this factor weighs in favor of dismissal. 14 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 15 determine whether the delay in a particular case interferes with docket management and the 16 public interest…. It is incumbent upon the Court to manage its docket without being subject to 17 routine noncompliance of litigants....” Id. Plaintiff has failed to file a completed in forma 18 pauperis application, or otherwise pay the filing fee. This failure is delaying this case and 19 interfering with docket management. Therefore, the second factor weighs 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, 191 F.3d at 991). However, “delay 22 inherently increases the risk that witnesses’ memories will fade and evidence will become 23 stale,” id. at 643, and it is Plaintiff’s failure to inform the Court of his detention status or submit 24 a completed in forma pauperis application, or otherwise pay the filing fee that is causing delay 25 and preventing this case from progressing. The Court is unable to proceed unless Plaintiff is 26 granted in forma pauperis status or pays the filing fee. Therefore, the third factor weighs in 27 favor of dismissal. 28 As for the availability of lesser sanctions, given that Plaintiff has stopped prosecuting 1 || this case, despite being warned of possible dismissal, there is little available to the Court which 2 || would constitute a satisfactory lesser sanction while protecting the Court from further 3 || unnecessary expenditure of its scarce resources. Considering Plaintiffs previous in forma 4 || pauperis application, it appears that monetary sanctions are of little use. And as Plaintiff has 5 || stopped prosecuting this case, excluding evidence would be a meaningless sanction. 6 || Additionally, because the dismissal being considered in this case is without prejudice, the Court 7 ||1is stopping short of using the harshest possible sanction of dismissal with prejudice. 8 Finally, because public policy favors disposition on the merits, this factor weighs 9 || against dismissal. Id. 10 After weighing the factors, the Court finds that dismissal without prejudice is 11 || appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 12 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 13 prosecute this case; and 14 2. The Clerk of Court be directed to close this case. 15 These findings and recommendations will be submitted to the United States district 16 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 17 || fourteen (14) days after being served with these findings and recommendations, Plaintiff may 18 || file written objections with the Court. The document should be captioned “Objections to 19 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 20 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 21 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 22 || (9th Cir. 1991)). 23 Additionally, IT IS ORDERED that the Clerk’s Office assign a district judge to this 24 || case. IT IS SO ORDERED. 26 |! Dated: _ July 11, 2023 [Je hey 27 UNITED STATES MAGISTRATE JUDGE 28