United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
CASE BE DISMISSED, WITHOUT PREJUDICE, BECAUSE OF
PLAINTIFF'S FAILURE TO PROSECUTE OBJECTIONS, IF ANY, DUE
WITHIN FOURTEEN DAYS ORDER DIRECTING CLERK TO ASSIGN DISTRICT
Freitag (“Plaintiff”) is a 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 August 31,
2018. (ECF No. 1). On January 24, 2019, the Court screened
Plaintiff's complaint. (ECF No. 8). The Court gave
Plaintiff thirty days to either file a first amended
complaint, or “[n]otify the Court that he wishes to
stand on the complaint, subject to this Court issuing
findings and recommendations to the assigned district judge
consistent with this order.” (Id. at 11).
order was returned as undeliverable on February 21, 2019.
Plaintiff has not responded to the Court's order or filed
a notice of change of address. Accordingly, the Court will
recommend that Plaintiffs case be dismissed, without
prejudice, for 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
the Court's need to manage its docket, “[t]he trial
judge is in the best position to determine whether the delay
in a particular case interferes with docket management and
the public interest…. It is incumbent upon the Court
to manage its docket without being subject to routine
noncompliance of litigants....” Pagtalunan,
291 at 639. As described above, Plaintiff has failed to
respond to a court order and has failed to update his
address. These failures are delaying this case and
interfering with docket management. Therefore, the second
factor weighs in favor of dismissal.
to the risk of prejudice, “pendency 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 respond to a court
order and to comply with the Local Rule requiring him to keep
the parties and the Court apprised of his current address
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 which
would constitute a satisfactory lesser sanction while
protecting the Court from further unnecessary expenditure of
its scarce resources. Considering Plaintiffs in forma
pauperis status, monetary sanctions are of little use,
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.
weighing the factors, the Court finds that dismissal without
prejudice is appropriate. Accordingly, the Court HEREBY
action be dismissed, without prejudice, based on Plaintiffs
failure to prosecute this case; and
Clerk of Court be directed to close this case.
findings and recommendations will be submitted to the United
States district judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after being served with these findings and
recommendations, Plaintiff may file written objections with
the Court. The 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 appeal. Wilkerson v. Wheeler,
772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS ORDERED that the Clerk of Court is directed to assign a