United States District Court, E.D. California
IF ANY, DUE IN THIRTY DAYS
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
CASE BE DISMISSED, WITHOUT PREJUDICE, FOR PLAINTIFF'S
FAILURE TO COMPLY WITH A COURT ORDER AND FAILURE TO PROSECUTE
(ECF NOS. 3 & 5)
Luca (“Plaintiff”) is a person detained by the
State of California under civil process. He is proceeding
pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983. On December
19, 2016, Plaintiff filed his complaint. (ECF No. 1). On
January 12, 2017, the Court screened Plaintiff's
complaint and found that Plaintiff stated a cognizable claim
against Defendant Francisco Moreno for excessive force in
violation of the Fourteenth Amendment. (ECF No. 5). The Court
also found service of the complaint appropriate, and sent
Plaintiff service documents that Plaintiff was to complete
and return within thirty days from the date of service of the
screening order. (Id.).
a notice the Court sent to Plaintiff on February 17, 2017,
was returned as undeliverable, the Court resent the screening
order to Plaintiff on March 1, 2017.
time period for Plaintiff to complete and return the service
documents has expired, and Plaintiff has not completed and
returned the service documents. Additionally, Plaintiff
failed to keep the Court informed of his current address, as
required by Local Rule 183(b) and the First Informational
Order in Prisoner/Civil Detainee Civil Rights Case (ECF No.
3, p. 5). Accordingly, the Court will recommend that
Plaintiff's case be dismissed for failure to comply with
a court order and failure to prosecute.
determining whether to dismiss a[n] [action] for failure to
prosecute or failure to comply with a court order, the Court
must weigh the following factors: (1) the public's
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits." Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
Ferdik v. Bonzelet 963 F.2d 1258, 1260-61 (9th Cir.
public's interest in expeditious resolution of litigation
always favors dismissal.'” Id (quoting
Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1999)). Accordingly, this factor weighs in favor of
to the risk of prejudice, “pendency of a lawsuit is not
sufficiently prejudicial in and of itself to warrant
dismissal.” Pagtalunan, 291 F.3d at 642
(citing Yourish v. California Amplifier, 191 F.3d
983, 991 (9th Cir. 1999)). However, Adelay inherently
increases the risk that witnesses' memories will fade and
evidence will become stale, " id at 643, and it
is Plaintiffs failure to complete and return the service
documents that is causing delay. The deadline for Plaintiff
to complete and return the service documents expired almost
four months ago. The case is now stalled until Plaintiff
completes and returns the service documents. Therefore, the
third factor weighs in favor of dismissal.
the availability of lesser sanctions, at this stage in the
proceedings there is little available to the Court which
would constitute a satisfactory lesser sanction while
protecting the Court from further unnecessary expenditure of
its scarce resources. Monetary sanctions are of little use,
considering Plaintiffs incarceration and in forma
pauperis status, and given the stage of these
proceedings, the preclusion of evidence or witnesses is not
available. Additionally, because the dismissal being
considered in this case is without prejudice, the Court is
stopping short of using the harshest possible sanction of
dismissal with prejudice.
because public policy favors disposition on the merits, this
factor weighs against dismissal. Id at 643.
weighing the factors, the Court finds that dismissal without
prejudice is appropriate. Accordingly, the Court HEREBY
1. This action be dismissed without prejudice, based on
Plaintiffs failure to prosecute this case and failure obey
the Court's order of January 12, 2017 (ECF No. 5); and
2. The Clerk of Court be directed to close this case.
findings and recommendations are submitted to the district
judge assigned to the case, pursuant to the provisions of
Title 28 U.S.C. § 636(b)(1). Within
thirty days after being served with these findings and
recommendations, Plaintiff may file written objections with
the court. Such a document should be captioned
"Objections to Magistrate Judge's Findings and
Recommendations." Plaintiff is advised that failure to
file objections within the ...