(PC) Jones v. Sherman ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TRACY JONES, Case No. 1:21-cv-01093-ADA-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE TO STUART SHERMAN, et al., COMPLY WITH COURT ORDERS AND TO 13 PROSECUTE THIS CASE Defendants. 14 (ECF Nos. 36 & 38) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 ORDER DIRECTING CLERK TO SEND A 17 COPY OF THIS ORDER TO PLAINTIFF AT HIS ADDRESS ON THE DOCKET AND AT 18 3995 BOSTON AVE., SAN DIEGO, CA 92113 19 20 Tracy Jones (“Plaintiff”) is a state prisoner (or former state prisoner) proceeding pro se 21 and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 22 On September 15, 2022, the Court issued an order requiring the parties to submit 23 scheduling and discovery statements within thirty days. (ECF No. 36). The Court also 24 required Plaintiff to file a notice of change of address within thirty days. (Id.).1 On October 25 26 1 On June 2, 2022, Plaintiff filed a notice of change of address, stating that his address will change on 27 July 6, 2022. (ECF No. 33). However, Plaintiff never confirmed that his address changed on July 6, 2022, nor did he make any other filings. Accordingly, the Court directed Plaintiff to file a notice of change of address and sent a 28 copy of the order to both the address listed on the docket and the address listed on his June 2, 2022 notice of change of address. (ECF No. 36). 1 14, 2022, Defendants filed their scheduling and discovery statement. (ECF No. 37). Plaintiff 2 did not file a scheduling and discovery statement or a notice of change of address, and his 3 deadline to do so passed. 4 Accordingly, on October 24, 2022, the Court gave Plaintiff an additional twenty-one 5 days to file his statement and notice of change of address. (ECF No. 38). Plaintiff was warned 6 that “[f]ailure to comply with this order may result in the dismissal of this action.” (Id. at 2). 7 This extended deadline passed, and Plaintiff once again failed to file his statement and notice of 8 change of address. 9 Therefore, the Court will recommend that this case be dismissed, without prejudice, for 10 failure to comply with Court orders and to prosecute this case. 11 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 12 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 13 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 14 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 15 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 16 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 17 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 18 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 19 this factor weighs in favor of dismissal. 20 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 21 determine whether the delay in a particular case interferes with docket management and the 22 public interest…. It is incumbent upon the Court to manage its docket without being subject to 23 routine noncompliance of litigants....” Id. Plaintiff’s failure to file a scheduling conference 24 statement and notice of change of address is delaying this case and interfering with docket 25 management. Therefore, the second factor weighs in favor of dismissal. 26 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 27 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 28 inherently increases the risk that witnesses’ memories will fade and evidence will become 1 stale,” id. at 643, and it is Plaintiff’s failure to comply with court orders and to prosecute this 2 case that is causing delay and preventing this case from progressing. Therefore, the third factor 3 weighs in favor of dismissal. 4 As for the availability of lesser sanctions, given that Plaintiff has chosen to stop 5 prosecuting this action and has failed to comply with court orders, despite being warned of 6 possible dismissal,2 there is little available to the Court which would constitute a satisfactory 7 lesser sanction while protecting the Court from further unnecessary expenditure of its scarce 8 resources. Considering Plaintiff’s in forma pauperis status, it appears that monetary sanctions 9 are of little use. And as Plaintiff has decided to stop prosecuting this case, excluding evidence 10 would be a meaningless sanction. Additionally, because the dismissal being considered in this 11 case is without prejudice, the Court is stopping short of using the harshest possible sanction of 12 dismissal with prejudice. 13 Finally, because public policy favors disposition on the merits, this factor weighs 14 against dismissal. Id. 15 After weighing the factors, the Court finds that dismissal without prejudice is 16 appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 17 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 18 comply with court orders and to prosecute this case; and 19 2. The Clerk of Court be directed to close this case. 20 These findings and recommendations are submitted to the United States district judge 21 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 22 (14) days after being served with these findings and recommendations, any party may file 23 written objections with the court. Such a document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 25 served and filed within fourteen (14) days after service of the objections. The parties are 26 27 2 “Each appearing attorney and pro se party is under a continuing duty to notify the Clerk and all other parties of any change of address or telephone number of the attorney or the pro se party. Absent such notice, 28 service of documents at the prior address of the attorney or pro se party shall be fully effective.” Local Rule 182(f). 1 || advised that failure to file objections within the specified time may result in the waiver of rights 2 |}on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 3 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 Additionally, IT IS ORDERED that the Clerk of Court is directed to send a copy this 5 || order to Plaintiff at his address listed on the docket and at 3995 Boston Ave., San Diego, CA 6 |/92113. 4 IT IS SO ORDERED. > || Dated: _November 22, 2022 [Je hey 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28