(PC) Grzeslo v. Fisher ( 2023 )

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 JAMES GRZESLO, 1:21-cv-01371-JLT-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 11 v. DISMISSED, WITHOUT PREJUDICE, BECAUSE OF PLAINTIFF’S FAILURE 12 TO COMPLY WITH COURT ORDERS B. SAUZO, AND TO PROSECUTE THIS CASE 13 Defendant. (ECF Nos. 57, 59, 62) 14 OBJECTIONS, IF ANY, DUE WITHIN 15 FOURTEEN DAYS 16 17 Plaintiff James Grzelso is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. Despite ordering Plaintiff multiple times to file a 19 scheduling and discovery statement, and advising him that failure to file one may result in 20 dismissal of this case, Plaintiff has failed to file a statement. (ECF Nos. 57, 59, 62). Accordingly, 21 the Court will recommend that this case be dismissed, without prejudice, for failure to comply 22 with Court orders and to prosecute this case. 23 I. BACKGROUND 24 Plaintiff filed this case on September 14, 2021, and it proceeds on Plaintiff’s First 25 Amendment claim against Defendant Suazo. (ECF Nos. 1, 36). Following Defendant’s waiver of 26 service, Plaintiff filed a series of motions accusing the undersigned of misconduct. On December 27 19, 2022, Plaintiff filed a motion accusing the undersigned of being biased against him and 28 engaging in improper ex parte communications with defense counsel, arguing that the 1 undersigned erroneously ordered an early settlement conference. (ECF No. 46). The undersigned 2 denied the motion on January 4, 2023, concluding that Plaintiff failed to identify any bias or 3 improper ex parte communications, that the undersigned had the authority to order a settlement 4 conference, and that there was no basis for recusal. (ECF No. 49). On January 17, 2023, Plaintiff filed a motion and objections generally (1) complaining 5 about the undersigned’s January 4, 2023 order (ECF No. 49) denying his prior motion and 6 objections (ECF No. 46) and (2) complaining that the undersigned granted (ECF No. 48) 7 Defendant’s motion for extension of time to file responsive pleading and to opt-out of the 8 scheduling conference (ECF No. 47) without awaiting a response from him. (ECF No. 50). The 9 undersigned denied the motion and objections on January 18, 2023, noting that Plaintiff identified 10 no errors leading the undersigned to reconsider the prior order and concluding that the 11 undersigned was permitted under Local Rule 144(c) to grant Defendant’s extension without 12 awaiting a response, and in any event, it appeared that Plaintiff did not oppose the extension. 13 (ECF No. 51). This order included a footnote, stating as follows: “Plaintiff is advised that any 14 future summary and unsupported motions or objections concerning ex parte communications or 15 the Court’s recusal will be summarily denied. Moreover, the filing of the same rejected arguments 16 may be considered frivolous and vexatious, subjecting Plaintiff to sanctions.” (Id. at 2 n. 2). 17 On March 20, 2023, Plaintiff filed a motion seeking (1) an order removing Attorney 18 Lawrence Bragg from this case for allegedly engaging in ex parte communications and (2) an 19 order staying this case while criminal charges are pursued against Defendant B. Sauzo. (ECF No. 20 53). The undersigned denied the motion on March 22, 2023, noting the prior rejections of 21 Plaintiff’s assertions of improper ex parte communications and concluding that Plaintiff had 22 provided no basis to stay the case, such as an indication that criminal charges had been, or would 23 be, filed against Defendant. (ECF No. 54). On April 13, 2023, the undersigned issued an order requiring the parties to file scheduling 24 and discovery statements within thirty days so that the case could be scheduled. (ECF No. 57). At 25 Plaintiff’s request, the undersigned granted Plaintiff an extension to June 19, 2023, to file his 26 statement. (ECF Nos. 58, 59). Defendant timely filed a statement on May 10, 2023. (ECF No. 27 60). 28 1 On June 15, 2023, Plaintiff filed a petition for writ of mandamus in the Ninth Circuit, 2 accusing the undersigned of violating his legal rights, condoning hate crimes against him, general 3 incompetence, and requesting that the undersigned be removed from the case and face discipline, 4 sanctions, or criminal prosecution. Grzeslo v. USDC-CAFR, Case No. 23-70108 (ECF No. 1 of Ninth Circuit case). 5 After Plaintiff failed, despite an extension, to file his scheduling and discovery statement by 6 June 19, 2023, the undersigned issued an order on June 27, 2023, granting Plaintiff a sua sponte 7 extension to July 14, 2023, to file his statement. (ECF No. 62). That order contained a footnote, 8 citing authority that a petition for writ of mandamus does not deprive a trial court of jurisdiction 9 and concluding that Plaintiff’s petition did not prevent the undersigned from moving the case 10 forward by entering a schedule. (Id. at 1 n. 1). Further, Plaintiff was advised that failure to 11 comply with the order may result in dismissal of his action. 12 On June 29, 2023, the Ninth Circuit denied Plaintiff’s petition for writ of mandamus, 13 concluding as follows: “Petitioner has not demonstrated a clear and indisputable right to the 14 extraordinary remedy of mandamus.” (ECF No. 63). 15 The July 14, 2023 deadline for Plaintiff to file his statement has expired without him filing 16 one. However, Plaintiff has filed two other documents: (1) a July 10, 2023 notice and affidavit, 17 asserting that the undersigned’s July 27, 2023 extension order is ineffective; and (2) a July 24, 18 2023 motion for judicial notice, accusing the undersigned of violating his constitutional rights, 19 condoning hate crimes against him, and general incompetence. (ECF Nos. 64, 65). 20 As the Court is recommending dismissal of this case, and because these filings merely 21 repeat Plaintiff’s previously rejected arguments of bias and unlawful rulings, the Court will 22 recommend that they be denied to the extent that they request any relief. 23 II. ANALYSIS In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 24 comply with a court order, the Court must weigh the following factors: (1) the 25 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 26 availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. 27 28 1 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 2 1258, 1260-61 (9th Cir. 1992)). 3 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 4 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of dismissal. 5 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 6 determine whether the delay in a particular case interferes with docket management and the 7 public interest. . . . It is incumbent upon the Court to manage its docket without being subject to 8 routine noncompliance of litigants. . . .” Id. Plaintiff’s failure to file his scheduling and discovery 9 statement, despite being given multiple chances to do so, is delaying this case. (ECF Nos. 57, 59, 10 62). Therefore, the second factor weighs in favor of dismissal. 11 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and 12 of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay inherently 13 increases the risk that witnesses’ memories will fade and evidence will become stale,” id. at 643, 14 and it is Plaintiff’s failure to comply with court orders and to prosecute this case that is causing 15 delay. Moreover, given Plaintiff’s multiple filings asserting that the undersigned’s rulings are 16 unlawful, there is no indication that he will follow the Court’s orders going forward. Therefore, 17 the third factor weighs in favor of dismissal. 18 As for the availability of lesser sanctions, given that Plaintiff has failed to comply with 19 court orders and prosecute this case, there is little available to the Court which would constitute a 20 satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of its 21 scarce resources. Considering Plaintiff’s in forma pauperis status, it appears that monetary 22 sanctions are of little use. And as Plaintiff has decided not to comply with the Court’s orders or 23 prosecute this case, excluding evidence would be a meaningless sanction. Additionally, because the dismissal being considered in this case is without prejudice, the Court is stopping short of 24 using the harshest possible sanction of dismissal with prejudice. Therefore, the fourth factor 25 weighs in favor of dismissal. 26 Finally, because public policy favors disposition on the merits, the fifth factor weighs 27 against dismissal. Id. 28 1 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 2 I. CONCLUSION AND RECOMMENDATIONS 3 Based on the above reasoning, the Court RECOMMENDS that: 4 1. This case be dismissed, without prejudice, because of Plaintiffs failure to comply 5 with court orders and to prosecute this case. 6 2. Plaintiff's notice and affidavit (ECF No. 64) and motion for judicial notice (ECF No. 7 65) be denied to the extent that they request any relief. 8 2. The Clerk of Court be directed to close this case. 9 These findings and recommendations are submitted to the United States district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 8 (14) days after being served with these findings and recommendations, any party may file written objections with the court. Such a document should be captioned “Objections to Magistrate 2 Judge’s Findings and Recommendations.” Any response to the objections shall be served and 13 filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson IS | y, Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 | (oth Cir. 1991)). 17 1g | IIS SO ORDERED. 19 | Dated: _ July 26, 2023 [sf hey 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28