(PC) Alcala v. Eaton ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DILLON EDWARD ALCALA, 1:21-cv-00592-GSA-PC 12 FINDINGS AND RECOMMENDATION, 13 Plaintiff, RECOMMENDING THAT THIS CASE BE DISMISSED, WITHOUT 14 vs. PREJUDICE, FOR PLAINTIFF’S FAILURE TO COMPLY WITH 15 EATON, et al., COURT’S ORDER TO SHOW CAUSE 16 Defendants. (ECF No. 14.) 17 OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 18 19 20 21 I. BACKGROUND 22 Dillon Edward Alcala (“Plaintiff”) is a former state prisoner proceeding pro se and in 23 forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 8, 2021, 24 Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On April 29, 2021, Plaintiff 25 filed the First Amended Complaint as a matter of course. (ECF No. 8.) 26 On December 1, 2022, the Court screened the First Amended Complaint and issued an 27 order to show cause, requiring Plaintiff to respond within 30 days showing cause why this case 28 should not be dismissed for Plaintiff’s failure to exhaust his administrative remedies. (ECF No. 1 14.) The thirty-day time period has passed and Plaintiff has not responded to the order to show 2 cause. (Court Record.) Therefore, it will be recommended that this case be dismissed, without 3 prejudice, for Plaintiff’s failure to comply with the Court’s order. 4 II. FAILURE TO COMPLY WITH COURT ORDER 5 In determining whether to dismiss this action for failure to comply with the directives set 6 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 7 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 8 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 9 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 10 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 11 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 12 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 13 action has been pending since April 8, 2021. Plaintiff’s failure to respond to the Court’s order 14 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 15 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 16 orders. Thus, both the first and second factors weigh in favor of 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 respond to the Court’s order that is causing delay. Therefore, the third 21 factor 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 because Plaintiff is proceeding pro per and in forma pauperis, and 26 given the early stage of these proceedings, the preclusion of evidence or witnesses is not 27 available. However, inasmuch as the dismissal being considered in this case is without prejudice, 28 the Court is stopping short of issuing the harshest possible sanction 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 III. CONCLUSION AND RECOMMENDATION 4 Accordingly, the Clerk of Court is directed to randomly assign a United States District 5 Judge to this case. 6 AND 7 The Court HEREBY RECOMMENDS that this case be dismissed, without prejudice, 8 based on Plaintiff’s failure to obey the Court’s order issued on December 1, 2022. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 11 (14) days after the date of service of these findings and recommendations, Plaintiff may file 12 written objections with the court. Such a document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18 19 Dated: January 20, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28