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Freitag v. Mims

United States District Court, E.D. California

August 30, 2019

RYAN DAVID FREITAG, Plaintiff,
v.
MARGARET MIMS, et al., Defendants.

          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 JUDGE

         Ryan 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).

         The 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.[1] Accordingly, the Court will recommend that Plaintiffs case be dismissed, without prejudice, for failure to prosecute.

         “In 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. 1992)).

         “‘The 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 dismissal.

         As to 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.

         Turning 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.

         As for 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.

         Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id.

         After weighing the factors, the Court finds that dismissal without prejudice is appropriate. Accordingly, the Court HEREBY RECOMMENDS that:

         1. This action be dismissed, without prejudice, based on Plaintiffs failure to prosecute this case; and

         2. The Clerk of Court be directed to close this case.

         These 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)).

         Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a ...


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