(PC) Turnage v. Unknown ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MACK TURNAGE, 1:22-cv-00183-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 UNKNOWN, AND 15 Defendant. FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO 16 OBEY COURT ORDER (ECF No. 13.) 17 OBJECTIONS, IF ANY, DUE IN 18 FOURTEEN (14) DAYS 19 20 21 22 23 24 Mack Turnage (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 25 with this civil rights action under 42 U.S.C. § 1983. 26 On April 20, 2022, the Court issued an order requiring Plaintiff to file a First Amended 27 Complaint on the Court’s form, and to do so within thirty days. (ECF No. 13.) The thirty-day 28 time period has expired and Plaintiff has not filed a First Amended Complaint 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 February 2, 2022. Plaintiff’s failure to respond to the Court’s order 13 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 14 continue to expend its scarce resources assisting a litigant who will not comply with the Court’s 15 orders. Thus, both the first and second factors weigh in favor of dismissal. 16 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 17 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 18 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 19 is Plaintiff’s failure to file his complaint on the Court’s form that is causing delay. Therefore, 20 the third factor weighs in favor of dismissal. 21 As for the availability of lesser sanctions, at this stage in the proceedings there is little 22 available to the Court which would constitute a satisfactory lesser sanction while protecting the 23 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 24 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 25 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 26 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 27 of dismissal with prejudice. 28 /// 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; 6 AND 7 2. The Court HEREBY RECOMMENDS that: 8 (1) This action be dismissed, without prejudice, based on Plaintiff’s failure to 9 obey the Court’s order issued on April 20, 2022; and 10 (2) The Clerk be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days after the date of service of these findings and recommendations, Plaintiff may file 14 written objections with the court. Such a document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 17 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 18 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20 21 Dated: June 16, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28