(PC) Ibarra v. Robles ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM JESSE IBARRA, 1:20-cv-01433-GSA-PC 12 ORDER FOR CLERK TO RANDOMLY Plaintiffs, ASSIGN A UNITED STATES DISTRICT 13 JUDGE TO THIS CASE vs. 14 AND ROBLES, et al., 15 FINDINGS AND RECOMMENDATIONS, Defendants. RECOMMENDING THAT THIS CASE BE 16 DISMISSED, WITHOUT PREJUDICE, FOR PLAINTIFF’S FAILURE TO OBEY 17 COURT ORDER (ECF No. 6.) 18 OBJECTIONS, IF ANY, DUE IN 19 FOURTEEN (14) DAYS 20 21 22 On March 8, 2022, the Court issued an order dismissing Plaintiff’s Complaint for failure 23 to state a claim, with leave to amend within thirty days. (ECF No. 6.) The thirty-day time period 24 has now expired and Plaintiff has not filed an amended complaint or otherwise responded to the 25 Court’s order.1 26 27 1 On March 24, 2022, the Court’s order was returned in the mail by the United States Postal Service as undeliverable. A notice on the envelope stated: Undeliverable, Return to Sender, Unable 28 to Forward, Not in Custody. (Court Record.) Plaintiff has not notified the court of any change in his address. Absent such notice, service at a party’s prior address is fully effective. Local Rule 182(f). 1 In determining whether to dismiss this action for failure to comply with the directives set 2 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 3 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 4 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 5 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 6 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 7 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 8 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 9 action has been pending since October 8, 2020. Plaintiff’s failure to respond to the Court’s order 10 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 11 continue to expend its scarce resources assisting a litigant who will not comply with the Court’s 12 order to amend the Complaint. Thus, both the first and second factors weigh in favor of dismissal. 13 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 14 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 15 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 16 is Plaintiff's failure to amend his Complaint that is causing delay. Therefore, the third factor 17 weighs in favor of dismissal. 18 As for the availability of lesser sanctions, at this stage in the proceedings there is little 19 available to the Court which would constitute a satisfactory lesser sanction while protecting the 20 Court from further unnecessary expenditure of its scarce resources. Given that Plaintiff is a 21 prisoner who is proceeding pro se and in forma pauperis, the Court finds monetary sanctions of 22 little use, and given the early stage of these proceedings, the preclusion of evidence or witnesses 23 is not available. However, inasmuch as the dismissal being considered in this case is without 24 prejudice, the Court is stopping short of issuing the harshest possible sanction of dismissal with 25 prejudice. 26 Finally, because public policy favors disposition on the merits, this factor will always 27 weigh against dismissal. Id. at 643. 28 /// 1 Accordingly, the Clerk of Court is HEREBY DIRECTED to randomly assign a United 2 States District Judge to this case. 3 AND 4 Based on the foregoing, the Court HEREBY RECOMMENDS that: 5 1. This action be dismissed, without prejudice, based on Plaintiff’s failure to obey 6 the Court’s order of March 8, 2022; and 7 2. The Clerk of Court be directed to close this case. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 10 (14) days after being served with these findings and recommendations, Plaintiff may file written 11 objections with the Court. Such a document should be captioned “Objections to Magistrate 12 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 13 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 14 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 15 1991)). 16 IT IS SO ORDERED. 17 18 Dated: April 15, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28