United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A
CLAIM, FAILURE TO PROSECUTE, AND FAILURE TO COMPLY WITH A
COURT ORDER (ECF NOS. 1 & 17) OBJECTIONS, IF ANY, DUE
WITHIN 21 DAYS ORDER DIRECTING CLERK TO ASSIGN DISTRICT
Oliver (“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
January 31, 2019. (ECF No. 1).
October 1, 2019, the undersigned issued a screening order
finding no cognizable claims in Plaintiff's complaint and
ordering Plaintiff to “a. File a First Amended
Complaint, which the Court will screen in due course; or b.
Notify the Court in writing that he wants to stand on his
complaint, in which case the Court will issue findings and
recommendations to a district judge consistent with this
order.” (ECF No. 17, p. 14). The Court also warned
Plaintiff that “failure to comply with this order may
result in the dismissal of this action.” (Id.)
been more than three months since the issuance of the
screening order and Plaintiff has failed to file an amended
complaint or indicate that he wishes to stand on his
complaint as drafted. Accordingly, for the reasons set forth
in the screening order (ECF No. 17), the Court will recommend
that Plaintiff's case be dismissed for failure to state a
claim upon which relief may be granted. The Court will also
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
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. Plaintiff has failed to respond to the
Court's screening order. This failure to respond is
delaying the 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, “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
comply with a court order and to prosecute this case that is
causing delay. Therefore, the third factor weighs in favor of
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 incarceration
and 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.
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. This action be dismissed, with prejudice, for failure to
state a claim, failure to prosecute, and failure to comply
with a court order; and
2. The 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
twenty-one (21) 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