United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT THE COURT DISMISS
THE CASE FOR PLAINTIFF'S FAILURES TO PROSECUTE AND TO
COMPLY WITH COURT ORDERS FOURTEEN-DAY DEADLINE
is a federal prisoner proceeding without counsel in this
civil rights action brought under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). On May 20, 2019, we screened plaintiff's
complaint under 28 U.S.C. § 1915A and concluded that he
had (1) improperly joined defendants and (2) failed to allege
how each defendant had personally participated in violating
his rights. ECF No 24. Accordingly, the court ordered
plaintiff to file a first amended complaint or notify the
court in writing that he did not agree to file an amended
complaint. Id. Plaintiff failed to respond within
the allotted time, thereby disobeying a court order.
court may dismiss a case for plaintiff's failure to
prosecute or failure to comply with a court order.
See Fed. R. Civ. P. 41(b); Hells Canyon Pres.
Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th
Cir. 2005). Involuntary dismissal is a harsh penalty, but a
district court has duties to resolve disputes expeditiously
and to avoid needless burden for the parties. See
Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d
639, 642 (9th Cir. 2002).
considering whether to dismiss a case for failure to
prosecute, a court ordinarily considers five 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 the defendants; (4)
the public policy favoring disposition of cases on their
merits and (5) the availability of less drastic
sanctions.” Omstead v. Dell, Inc., 594 F.3d
1081, 1084 (9th Cir. 2010) (quoting Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). These
heuristic factors merely guide the court's inquiry; they
are not conditions precedent for dismissal. See In re
Phenylpropanolamine (PPA) Products Liability Litig., 460
F.3d 1217, 1226 (9th Cir. 2006).
public's interest in expeditious resolution of litigation
always favors dismissal.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (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, on its own,
is not sufficiently prejudicial to warrant dismissal.
Id. (citing Yourish, 191 F.3d at 991).
However, delay inherently increases the risk that
witnesses' memories will fade and evidence will become
stale, id. at 643, and it is plaintiff's failure
to prosecute this case that is causing delay. 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
plaintiff's apparent inability to pay the filing fee,
and-given the stage of these proceedings-the preclusion of
evidence or witnesses is not available. Accordingly, the
fourth factor also weighs in favor of dismissal.
because public policy favors disposition on the merits, this
factor weighs against dismissal. Id.
weighing the factors, including the court's need to
manage its docket, the court finds that dismissal is
appropriate. The court recommends dismissal without
court recommends that the case be dismissed for plaintiffs
failures to prosecute and comply with court orders. The
undersigned submits these findings and recommendations to the
U.S. district judge presiding over the case under 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 304. Within 14 days of the
service of the findings and recommendations, the parties may
file written objections to the findings and recommendations
with the court and serve a copy on all parties. The document
containing the objections must be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” The presiding district judge will
then review the findings and recommendations under 28 U.S.C.