United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A
CLAIM, FAILURE TO PROSECUTE, AND FAILURE TO COMPLY WITH A
COURT ORDER (ECF NOS. 1 & 10)
IF ANY, DUE WITHIN TWENTY-ONE DAYS
Leiva (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed the complaint commencing this action on
February 5, 2016. (ECF No. 1). On March 31, 2017, the Court
screened Plaintiff's complaint and found that it failed
to state a claim upon which relief could be granted. (ECF No.
10). The Court gave Plaintiff thirty days from the date of
service of the screening order to file an amended complaint
or to notify the Court that he wishes to stand on his
complaint, subject to findings and recommendations to the
district judge consistent with the screening order.
(Id.). The Court also warned Plaintiff that failure
to file an amended complaint or to notify the court that he
wishes to stand on his complaint could result in the
dismissal of this case. (Id. at p. 6).
time period expired, and Plaintiff did not file an amended
complaint or notify the Court that he wishes to stand on his
complaint. Accordingly, the Court will recommend that
Plaintiff's case be dismissed, with prejudice, for
failure to state a claim, 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, Apendency of a lawsuit is not
sufficiently prejudicial in and of itself to warrant
dismissal." Id at 642 (citing Yourish,
191 F.3d at 991). 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 file an amended complaint or to notify the Court
that he wishes to stand on his complaint that is causing
delay. The Court found that Plaintiffs complaint failed to
state a claim approximately a month and a half ago. The case
is now stalled until Plaintiff files an amended complaint or
notifies the Court that he wishes to stand on his Complaint.
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 that 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. While
dismissal with prejudice is a harsh sanction, the Court has
already found that Plaintiffs complaint failed to state a
because public policy favors disposition on the merits, this
factor weighs against dismissal. Id
weighing the factors, the Court finds that dismissal with
prejudice is appropriate. Accordingly, the Court HEREBY
1. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. §
1915(e)(2)(B)(ii), this action be DISMISSED, with prejudice,
based on Plaintiffs failure to state a claim upon which
relief may be granted under § 1983, as well as
Plaintiffs failure to comply with a Court order and failure
2. This dismissal be subject to the
“three-strikes” provision set forth in 28 U.S.C.
§ 1915(g). Coleman v. Tollefson, 135 S.Ct.
1759, 1763 (2015); and
3. 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 twenty-one 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 specified
time may result in the waiver of rights on ...