(PC) Jones v. Wranke ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DWAYNE JONES, Case No. 1:23-cv-00685-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE TO VERNON H. WRANKE, et al., COMPLY WITH COURT ORDERS AND TO 13 PROSECUTE THIS CASE Defendants. 14 (ECF Nos. 3, 7, 9) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 ORDER DIRECTING CLERK TO (1) 17 ASSIGN A DISTRICT JUDGE AND (2) MAIL A COPY OF THIS ORDER TO 18 PLAINTIFF AT HIS ADDRESS ON THE DOCKET 19 20 21 Plaintiff Dwayne Jones is proceeding pro se and in forma pauperis, in this civil rights 22 action filed on May 4, 2023, pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 6). At the time 23 Plaintiff filed the complaint, he was incarcerated at John Latorraca Correctional Center. 24 Because Plaintiff’s complaint included the full names and birthdates of minor children 25 of a different inmate, (ECF No. 1, p. 13), the Court set a deadline for Plaintiff to file a redacted 26 version of the complaint (ECF No. 3), and later extended the deadline to July 7, 2023, when 27 Plaintiff failed to timely file one (ECF No. 7). On June 23, 2023, Plaintiff filed a version of his 28 complaint that was defective in at least three respects: (1) a different person—Gabriel Felix— 1 was named as the Plaintiff; (2) pages from the original complaint were missing; and (3) 2 Plaintiff failed to redact the minors’ information, leading the Court to direct the Clerk to seal 3 this latest complaint to protect the minors’ information. (ECF No. 8, p. 1, 11). The Court gave 4 Plaintiff “a final opportunity to file a redacted version of his complaint,” setting a deadline of 5 July 14, 2023, to do so, and warning Plaintiff that failure to comply with the Court’s order may 6 result in the dismissal of the case. (ECF No. 9). 7 This extended deadline has passed, and Plaintiff once again failed to file a redacted 8 version of his complaint. Moreover, the Court’s latest two orders have been returned as 9 undeliverable, with a notation that Plaintiff is “not in custody.” (ECF Nos. 7, 9; see 7/5/23 and 10 7/14/23 docket entries) (capitalization omitted). Plaintiff has not provided the Court with an 11 updated address as required by Local Rule 182(f)1 and has not filed anything since his defective 12 complaint on June 23, 2023. 13 Therefore, the Court will recommend that this case be dismissed, without prejudice, for 14 failure to comply with Court orders and to prosecute this case. 15 In determining whether to dismiss a[n] [action] for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (1) the 16 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the 17 availability of less drastic alternatives; and (5) the public policy favoring 18 disposition of cases on their merits. 19 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 20 1258, 1260-61 (9th Cir. 1992)). 21 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 22 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 23 this factor weighs in favor of dismissal. 24 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 25 26 1 Local Rule 182(f) provides as follows: “Each appearing attorney and pro se party is under a continuing 27 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, service of documents at the prior address of the attorney 28 or pro se party shall be fully effective. Separate notice shall be filed and served on all parties in each action in which an appearance has been made.” 1 determine whether the delay in a particular case interferes with docket management and the 2 public interest. . . . It is incumbent upon the Court to manage its docket without being subject to 3 routine noncompliance of litigants. . . .” Id. Plaintiff’s failure to file a redacted version of his 4 complaint, despite three court orders to do so, is delaying this case. (ECF Nos. 3, 7, 9). 5 Therefore, the second factor weighs in favor of dismissal. 6 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 7 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 8 inherently increases the risk that witnesses’ memories will fade and evidence will become 9 stale,” id. at 643, and it is Plaintiff’s failure to comply with court orders and to prosecute this 10 case that is causing delay. Moreover, with Plaintiff having failed to update his address as 11 required by the Local Rules, this case will not be able to progress in the future. Therefore, the 12 third factor weighs in favor of dismissal. 13 As for the availability of lesser sanctions, given that Plaintiff has failed to comply with 14 court orders, has chosen to stop prosecuting this case, and has not updated his address, there is 15 little available to the Court which would constitute a satisfactory lesser sanction while 16 protecting the Court from further unnecessary expenditure of its scarce resources. Considering 17 Plaintiff’s in forma pauperis status, it appears that monetary sanctions are of little use. 18 Additionally, because the dismissal being considered in this case is without prejudice, the Court 19 is stopping short of using the harshest possible sanction of dismissal with prejudice. Therefore, 20 the fourth factor weighs in favor of dismissal. 21 Finally, because public policy favors disposition on the merits, the fifth factor weighs 22 against dismissal. Id. 23 After weighing the factors, the Court finds that dismissal without prejudice is 24 appropriate. 25 Accordingly, IT IS ORDERED that the Clerk of Court is directed to (1) assign a district 26 judge to this case and (2) mail a copy of this order to Plaintiff at his address on the docket. 27 \\\ 28 \\\ 1 And the Court RECOMMENDS that: 2 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 3 comply with court orders and to prosecute this case; and 4 2. The Clerk of Court be directed to close this case. 5 These findings and recommendations are submitted to the United States district judge 6 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 7 || (14) days after being served with these findings and recommendations, any party may file 8 || written objections with the court. Such a document should be captioned “Objections to 9 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 10 || served and filed within fourteen (14) days after service of the objections. The parties are 11 || advised that failure to file objections within the specified time may result in the waiver of rights 12 || on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 13 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IT IS SO ORDERED. 16 || Dated: _ July 26, 2023 [Jee Sy — 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28