(PC) Quintero v. Mike ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DANIEL QUINTERO, Case No. 1:23-cv-01737-EPG (PC) 11 12 Plaintiff, ORDER DIRECTING CLERK 13 v. TO ASSIGN DISTRICT JUDGE 14 T. MIKE, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS 16 TO DISMISS THIS ACTION WITHOUT PREJUDICE FOR FAILURE TO 17 PROSECUTE AND FAILURE TO 18 COMPLY WITH COURT’S ORDERS 19 20 OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS 21 22 Plaintiff Daniel Quintero is a prisoner proceeding pro se and in forma pauperis in this 23 civil rights action filed pursuant to 42 U.S.C. § 1983. In his pleadings, Plaintiff alleges that a 24 correctional officer refused to transfer his cell, directed a search of his cell that destroyed 25 religious items, and placed him in another cell with a dangerous inmate. 26 For reasons stated below, the Court recommends that this case be dismissed without 27 prejudice for failure to prosecute. 28 1 I. BACKGROUND 2 Plaintiff filed the complaint commencing this action on August 14, 2023. (ECF No. 1). 3 On May 15, 2024, the Court screened Plaintiff’s complaint, found that Plaintiff failed to state 4 any cognizable claims, and granted Plaintiff leave to file amended complaint. (ECF No. 10). 5 Plaintiff then filed a First Amended Complaint (FAC) on May 28, 2024. (ECF No. 11). 6 The Court again screened Plaintiff’s complaint, again found it failed to state any cognizable 7 claims, and granted Plaintiff leave to file amended complaint. (ECF No. 12). 8 On July 24, 2024, Plaintiff filed a document that is labelled “Second Amended 9 Complaint” (SAC). (ECF No. 14). However, the document appears to be a response to the 10 Court’s screening order rather than an amended complaint. Even though it was filed on a 11 standard “amended civil rights complaint” form, the form itself is largely blank. In place of 12 description of claims, it states “see attached response to recommendation to file 2nd Amended 13 Complaint,” (ECF No. 14 at 3), which appears to be a reference to the Court’s second 14 Screening Order (ECF No. 12). Attached to the amended complaint form is a handwritten 15 statement (ECF No. 14 at 5), with section titled “Amended Response to Section (B)” (ECF No. 16 14 at 5) and has “Res. To Item (C)” (ECF No. 14 at 6), which seem to respond to Section “B. 17 Linkage Requirement and Supervisory Liability” (ECF No. 12 at 6), and Section “C. Failure to 18 Protect” (ECF No. 12 at 8) in the second Screening Order, respectively. 19 On September 10, 2024, the Court issued an order giving Plaintiff one final opportunity 20 to file an amended complaint within 30 days. (ECF No. 15). The Court advised Plaintiff that 21 this amended complaint “must be complete in itself without reference to any earlier 22 documents.” (Id. at 5). In the alternative, the Court stated that Plaintiff “may file a statement 23 with the Court that he wants to stand on his Second Amended Complaint (ECF No. 14), in 24 which case the Court will screen it but without reference to any earlier complaint or document.” 25 (ECF No. 15 at 5). 26 The deadline to respond to the Court’s order has now passed, and Plaintiff has not filed 27 a third amended complaint or a statement with the Court that he wishes to proceed on his 28 second amended complaint, or had otherwise communicated with the Court. 1 II. LEGAL STANDARDS 2 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure 3 to comply with court orders and to prosecute. In determining whether to dismiss an action 4 under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court 5 must weigh the following factors: (1) the public’s interest in expeditious resolution of 6 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 7 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 8 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th 9 Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 10 III. ANALYSIS 11 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 12 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 13 dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 14 (internal quotation marks omitted). 15 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in 16 the best position to determine whether the delay in a particular case interferes with docket 17 management and the public interest.” Id. Here, Plaintiff has failed to file a third amended 18 complaint or otherwise notify the Court that he wants to stand on his second amended 19 complaint as required by a court order. Allowing this case to proceed further without any 20 indication that Plaintiff intends to prosecute his case is a waste of judicial resources. See Hall v. 21 San Joaquin County Jail, No. 2:13-cv-0324 AC P, 2018 WL 4352909, at *2 (E.D. Cal. Sept. 22 12, 2018) (“The court will not continue to drag out these proceedings when it appears that 23 plaintiffs have no intention of diligently pursuing this case.”). Therefore, the second factor 24 weighs in favor of dismissal. 25 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 26 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 27 F.3d at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that 28 witnesses’ memories will fade and evidence will become stale,” id. at 643, and it is Plaintiff’s 1 failure to comply with a court order that is causing delay and preventing this case from 2 progressing. Therefore, the third factor weighs in favor of dismissal. 3 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in 4 the proceedings there is little available to the Court which would constitute a satisfactory lesser 5 sanction while protecting the Court from further unnecessary expenditure of its scarce 6 resources. Monetary sanctions are of little use, considering Plaintiff’s incarceration and in 7 forma pauperis status. (See ECF No. 9). And, given the stage of these proceedings, the 8 preclusion of evidence or witnesses is not available. Moreover, dismissal without prejudice is 9 the lesser sanction available to the Court. Under Federal Rule of Civil Procedure 41(b), a court 10 may dismiss an action with prejudice for failure to comply with court orders and to prosecute. 11 Fed. R. Civ. P. (41)(b); see also Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962) (holding 12 that Rule 41(b) allows sua sponte dismissal by the Court because “[t]he authority of a court to 13 dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ 14 governed not by rule or statute but by the control necessarily vested in courts to manage their 15 own affairs so as to achieve the orderly and expeditious disposition of cases.”) Therefore, the 16 fourth factor also weighs in favor of dismissal. 17 Finally, because public policy favors disposition on the merits, this factor weighs 18 against dismissal. Pagtalunan, 291 F.3d at 643. 19 IV. CONCLUSION AND RECOMMENDATIONS 20 After weighing the factors, the Court finds that dismissal without prejudice is 21 appropriate. Accordingly, IT IS ORDERED that the Clerk of the Court randomly assign a 22 district judge to this action. 23 The Court further RECOMMENDS that: 24 1. This action be dismissed without prejudice under Federal Rule of Civil 25 Procedure 41(b) for failure to prosecute and failure to follow Court’s orders; and 26 2. The Clerk of Court be directed to close this case. 27 These findings and recommendations will be submitted to the United States district 28 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 1 || thirty days after being served with these findings and recommendations, Plaintiff may file 2 || written objections with the Court. The document should be captioned “Objections to Magistrate 3 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 4 || within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 5 || 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 6 || 1991)). 7 g IT IS SO ORDERED. || Dated: _ October 22, 2024 [Je Fahey — 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28