(PC) Sherman v. Ramadan ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SHERMAN, 1:20-cv-01609-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 DR. RAMADAN, AND 15 Defendant. FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITHOUT 16 PREJUDICE, FOR FAILURE TO OBEY COURT ORDER 17 (ECF No. 7.) 18 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 19 20 21 Justin Sherman (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action filed pursuant to 42 U.S.C. § 1983. On November 13, 2020, Plaintiff 23 filed the Complaint commencing this action. (ECF No. 1.) 24 On March 8, 2022, the Court screened the Complaint and issued an order requiring 25 Plaintiff to either file a First Amended Complaint or notify the court that he is willing to proceed 26 only with the medical claim against Defendant Dr. Ramadan, within thirty days. (ECF No. 7.) 27 The thirty-day time period has now expired and Plaintiff has not filed a First Amended 28 Complaint, notified the court that he wishes to proceed with the medical claim, or otherwise 1 responded to the Court’s order. Therefore, it will be recommended that this case be dismissed 2 for Plaintiff’s failure to comply with the Court’s order. The Clerk shall be directed to randomly 3 assign a United States District Judge to this action. 4 In determining whether to dismiss this action for failure to comply with the directives set 5 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 6 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 7 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 8 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 9 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 10 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 11 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 12 action has been pending since November 13, 2020. Plaintiff’s failure to respond to the Court’s 13 order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court 14 cannot continue to expend its scarce resources assisting a litigant who will not decide which of 15 his claims he wishes to proceed. Thus, both the first and second factors weigh in favor of 16 dismissal. 17 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 18 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 19 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 20 is Plaintiff’s failure to file an amended complaint or notify the court he wishes to proceed with 21 the medical claim that is causing delay. Therefore, the third factor weighs in favor of dismissal. 22 As for the availability of lesser sanctions, at this stage in the proceedings there is little 23 available to the Court which would constitute a satisfactory lesser sanction while protecting the 24 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 25 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 26 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 27 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 28 of dismissal with prejudice. 1 Finally, because public policy favors disposition on the merits, this factor will always 2 weigh against dismissal. Id. at 643. 3 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a 4 United States District Judge to this action. 5 AND 6 The Court HEREBY RECOMMENDS that: 7 1. This action be dismissed, without prejudice, based on Plaintiff’s failure to obey 8 the Court’s order issued on March 8, 2022; and 9 2. The Clerk be directed to close this case. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 12 (14) days after the date of service of these findings and recommendations, Plaintiff may file 13 written objections with the court. Such a document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 17 (9th Cir. 1991)). 18 IT IS SO ORDERED. 19 20 Dated: April 29, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28