(PC) Rodriguez v. Newsom ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, 1:20-cv-01792-GSA-PC 12 ORDER FOR CLERK TO RANDOMLY Plaintiffs, ASSIGN A UNITED STATES DISTRICT 13 JUDGE TO THIS CASE vs. 14 AND NEWSOM, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. TO DISMISS THIS CASE FOR FAILURE 16 TO OBEY COURT ORDER (ECF No. 6.) 17 OBJECTIONS, IF ANY, DUE IN 18 FOURTEEN (14) DAYS 19 20 21 22 I. BACKGROUND 23 Pedro Rodriguez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 24 with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 25 commencing this action on December 21, 2020. (ECF No. 1.) 26 On March 25, 2022, the court screened the Complaint and issued an order dismissing the 27 Complaint for failure to state a claim, with leave to amend within thirty days. (ECF No. 6.) The 28 thirty-day time period has now expired and Plaintiff has not filed an amended complaint or 1 otherwise responded to the court’s order. Therefore, it will be recommended that this case be 2 dismissed for Plaintiff’s failure to comply with the court’s order. The Clerk shall be directed to 3 randomly 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 December 21, 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 file an amended 15 complaint to proceed with his lawsuit. 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 that is causing delay. Therefore, the third factor 21 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: 4 1. The Clerk of Court shall randomly assign a United States District Judge to this 5 action; and 6 2. The Court HEREBY RECOMMENDS that this action be dismissed, without 7 prejudice, based on Plaintiff’s failure to obey the Court’s order issued on March 15, 2022. 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 the date of service of these findings and recommendations, Plaintiff may file 11 written objections with the court. Such a document should be captioned “Objections to 12 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 14 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 15 (9th Cir. 1991)). 16 IT IS SO ORDERED. 17 18 Dated: May 12, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28