(PC) Milton v. Trate ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 KYLE DAVID MILTON, Case No. 1:22-cv-00988-ADA-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION WITHOUT 13 v. PREJUDICE FOR FAILURE TO 14 PROSECUTE AND FAILURE TO B.M. TRATE, et al., COMPLY WITH A COURT ORDER 15 Defendants. OBJECTIONS, IF ANY, DUE IN 14 DAYS 16 17 Kyle David Milton is an inmate in custody of federal Bureau of Prisons and is proceeding 18 pro se and in forma pauperis in this civil rights action. For reasons stated below, the Court 19 recommends that this be dismissed without prejudice for failure to prosecute and failure to comply with Court’s orders. 20 I. BACKGROUND 21 Defendants Trate and Grasley1 filed a motion to dismiss and for summary judgment on 22 April 25, 2023. (ECF No. 25). Their motion included a written warning about failure to respond 23 as required by Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) and included a 24 summary of Local Rule 230, warning that failure to respond may result in imposition of 25 sanctions. (ECF No. 25 at 2–3). Defendant Paltenghi joined their pending motions on May 26, 26 27 1 On the Court’s docket, Dr. Grasley’s name appears as “Grassley” because it was spelled that way in the Plaintiff’s complaint. Defendants’ Motion to Dismiss (ECF No. 25 at 2, n.1), states that the correct 28 spelling is “Grasley.” 1 2023. (ECF No. 30). Thus, all three Defendants remaining after the Court’s screening order (ECF 2 No. 11) joined in the motion to dismiss and for summary judgment. Plaintiff asked for additional 3 60 days to respond (ECF No. 28) and the Court granted him the extension. (ECF No. 29). 4 Plaintiff had until July 18, 2023 to respond to the motion to dismiss and for summary judgment, but no response was filed by that date. On August 2, 2023, Defendants filed a Response in 5 support of their unopposed motion, urging the Court to grant it. (ECF No. 32). 6 The Court then issued an order on August 8, 2023, sua sponte giving Plaintiff another 7 twenty-one days to file an opposition or statement of non-opposition to Defendants’ motion to 8 dismiss and for summary judgment. (ECF No. 33). In that order, the Court warned Plaintiff that if 9 he “fails to file his opposition within this period, the Court may deem the failure to oppose the 10 motion to dismiss as a waiver of any opposition to that motion, and may recommend that the 11 motion be granted on that basis. Alternatively, the Court may recommend that this action be 12 dismissed for failure to prosecute and failure to comply with a court order.” (Id. at 2). 13 The twenty-one-day period has expired, and Plaintiff has not filed an opposition to 14 Defendants’ motion or otherwise responded to the Court’s order. It appears that Plaintiff is 15 unlikely to do so, for it was returned to the Court on August 22, 2023 as undeliverable and 16 Plaintiff has failed to update his address with the clerk of court in the subsequent three months. 17 II. LEGAL STANDARDS 18 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure to 19 comply with court orders and to prosecute. In determining whether to dismiss an action under 20 Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court must weigh 21 the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 22 court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the 23 availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 24 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 25 III. ANALYSIS 26 Despite the Court’s order for Plaintiff to file an opposition or statement of non-opposition 27 to Defendants’ motion to dismiss and for summary judgment within twenty-one days, after more 28 1 than three months, Plaintiff failed to file any response. Moreover, Plaintiff has failed to keep his 2 address current with the clerk of court, as required by Eastern District of California Local Rule 3 182(f) (“Each . . . pro se party is under a continuing duty to notify the Clerk and all other parties 4 of any change of address . . . Absent such notice, service of documents at the prior address . . . shall be fully effective.”). Plaintiff was also required to keep his address current by the 5 Court’s order. (ECF No. 3 at 5). The Court issued multiple orders warning Plaintiff that failure to 6 comply with Local Rules may result in dismissal of his case (ECF No. 3 at 1) and that failure to 7 file an opposition to Defendants’ motion or statement of non-opposition may result in 8 recommendation that “this action be dismissed for failure to prosecute and failure to comply with 9 a court order.” (ECF No. 33 at 2). Despite these warnings, Plaintiff has failed to prosecute this 10 action and to follow Court’s orders. 11 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 12 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 13 dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 14 (internal quotation marks omitted). 15 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in the 16 best position to determine whether the delay in a particular case interferes with docket 17 management and the public interest. . . . It is incumbent upon the Court to manage its docket 18 without being subject to routine noncompliance of litigants . . . ” Pagtalunan, 291 F.3d at 639. 19 Despite being given ample opportunity to do so, Plaintiff has failed to respond to the Defendants’ 20 motion filed seven months ago and the Court’s order filed three months ago. Plaintiff also failed 21 to update his address for the past three months. This failure to respond and to keep the Court and 22 the Defendants informed as to the address to which pleadings and discovery may be sent is 23 inexcusably delaying the case and interfering with docket management. Therefore, the second factor weighs in favor of dismissal. 24 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 25 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Id. at 642 (citing 26 Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that witnesses’ memories 27 will fade and evidence will become stale,” id. at 643, and it is Plaintiff’s failure to prosecute this 28 1 case that is causing delay. Moreover, Defendants are urging the Court to dismiss the case. (ECF 2 Nos. 25, 32). Therefore, the third factor weighs in favor of dismissal. 3 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in the 4 proceedings there is little available to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of its scarce resources. 5 Considering Plaintiff’s incarceration and in forma pauperis status, monetary sanctions are of little 6 use. And, given the stage of these proceedings, the preclusion of evidence or witnesses is not 7 available. Moreover, dismissal without prejudice is the lesser sanction available to the Court. 8 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action with prejudice for 9 failure to comply with court orders and to prosecute. Fed. R. Civ. P. (41)(b); see also Link v. 10 Wabash R. Co., 370 U.S. 626, 630–31 (1962) (holding that Rule 41(b) allows sua sponte 11 dismissal by the Court because “[t]he authority of a court to dismiss sua sponte for lack of 12 prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute 13 but by the control necessarily vested in courts to manage their own affairs so as to achieve the 14 orderly and expeditious disposition of cases.”) Therefore, the fourth factor also weighs in favor of 15 dismissal. 16 Finally, public policy favors disposition on the merits. Pagtalunan, 291 F.3d at 643. 17 Because the dismissal is without prejudice, and thus, does not operate as an adjudication on the 18 merits, this factor weighs against dismissal. 19 IV. CONCLUSION AND RECOMMENDATIONS 20 After weighing the Pagtalunan factors, the Court finds that dismissal without prejudice is 21 appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 22 1. This action be dismissed without prejudice under Federal Rule of Civil Procedure 23 41(b) for failure to prosecute and failure to follow Court’s orders; 2. Defendants’ Motion to Dismiss, ECF No. 25, be denied as moot; and 24 3. The Clerk of Court be directed to close this case. 25 These findings and recommendations will be submitted to the United States district judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 27 (14) days after being served with these findings and recommendations, Plaintiff may file written 28 1 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 3 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 4 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6 Dated: _ November 27, 2023 □□□ hey UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28