- 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TREAUNA L. TURNER, Case No. 1:22-cv-00480-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE TO CENTRAL CALIFORNIA WOMEN’S COMPLY WITH A COURT ORDER AND 13 FACILITY, et al., TO PROSECUTE THIS CASE 14 Defendants. (ECF Nos. 9 & 14) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 ORDER DIRECTING CLERK TO ASSIGN 17 DISTRICT JUDGE 18 19 Treauna Turner (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 in this civil rights action. 21 Plaintiff filed the complaint commencing this action on April 22, 2022. (ECF No. 1). 22 On June 3, 2022, the Court screened Plaintiff’s complaint and found that it failed to state any 23 cognizable claims. (ECF No. 9). The Court gave Plaintiff thirty days to either: “a. File a First 24 Amended Complaint that is no longer than twenty (20) pages, including exhibits; or b. 25 Notify the Court in writing that she wants to stand on her complaint.” (Id. at 19). The Court 26 warned Plaintiff that “[f]ailure to comply with this order may result in the dismissal of this 27 action.” (Id.). 28 On June 23, 2022, the Court granted Plaintiff’s first motion for an extension of time to 1 respond to the screening order, giving Plaintiff until October 4, 2022, to respond. (ECF No. 2 11). On October 11, 2022, the Court granted Plaintiff’s second motion for an extension of 3 time, giving Plaintiff until January 3, 2023, to respond to the screening order. (ECF No. 14). 4 In this order the Court also warned Plaintiff that no further extensions of this deadline would be 5 granted. (Id. at 2). 6 Plaintiff’s extended deadline to respond to the screening order has passed, and Plaintiff 7 has not filed an amended complaint or otherwise responded to the Court’s screening order. 8 Therefore, the Court will recommend that this case be dismissed, without prejudice, for failure 9 to comply with a Court order and to prosecute this case. 10 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 11 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 12 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 13 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 14 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 15 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 16 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 17 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 18 this factor weighs in favor of dismissal. 19 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 20 determine whether the delay in a particular case interferes with docket management and the 21 public interest…. It is incumbent upon the Court to manage its docket without being subject to 22 routine noncompliance of litigants....” Id. Plaintiff’s failure to respond to the screening order 23 is delaying this case and interfering with docket management. Therefore, the second factor 24 weighs in favor of dismissal. 25 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 26 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 27 inherently increases the risk that witnesses’ memories will fade and evidence will become 28 stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this 1 case that is causing delay and preventing this case from progressing. Therefore, the third factor 2 weighs in favor of dismissal. 3 As for the availability of lesser sanctions, given that Plaintiff has chosen to stop 4 prosecuting this action and has failed to comply with a court order, despite being warned of 5 possible dismissal, there is little available to the Court which would constitute a satisfactory 6 lesser sanction while protecting the Court from further unnecessary expenditure of its scarce 7 resources. Considering Plaintiff’s incarceration and in forma pauperis status, it appears that 8 monetary sanctions are of little use. And as Plaintiff has decided to stop prosecuting this case, 9 excluding evidence would be a meaningless sanction. Additionally, because the dismissal 10 being considered in this case is without prejudice, the Court is stopping short of using the 11 harshest possible sanction of dismissal with prejudice. 12 Finally, because public policy favors disposition on the merits, this factor weighs 13 against dismissal. Id. 14 After weighing the factors, the Court finds that dismissal without prejudice is 15 appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 16 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 17 comply with a court order and to prosecute this case; and 18 2. The Clerk of Court be directed to close this case. 19 These findings and recommendations will be submitted to the United States district 20 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 21 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 22 file written objections with the Court. The document should be captioned “Objections to 23 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 24 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 25 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 26 (9th Cir. 1991)). 27 \\\ 28 \\\ enn ne eee een nnn nnn ne SE OI IIS 1 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 2 || Judge to this case. 3 IT IS SO ORDERED. ‘ll Dated: _ January 12, 2023 [see hey 5 UNITED STATES MAGISTRATE JUDGE 6 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 1:22-cv-00480
Filed Date: 1/12/2023
Precedential Status: Precedential
Modified Date: 6/20/2024