United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT PLAINTIFF'S
COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM
OBJECTIONS, IF ANY, DUE WITHIN 21 DAYS (ECF NOS. 1 &
8.)
Plaintiff
Salvador Jimenez (“Plaintiff”) is proceeding
pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff
filed the instant complaint on June 3, 2019, along with a
motion for temporary restraining order and preliminary
injunction. (ECF No. 1.) Generally, Plaintiff alleges that
Defendants are acting with deliberate indifference to
conditions posing a substantial risk of serious harm to
Plaintiff by planning to merge Special Needs Yard
(“SNY”) (formerly known as a protective custody)
inmates with General Population (“GP”) inmates
onto a yard known as a “Non-Designated Programming
Facility” (“NDPF”) Yard at Avenal State
Prison. The Court construed Plaintiff's allegations as a
facial challenge to the California of Corrections and
Rehabilitation's (“CDCR”) NDPF program, as a
well as an as-applied challenge to that program.
On
October 28, 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 wishes to stand on his
Complaint and have it reviewed by a District Judge, in which
case the Court will issue findings and recommendations to the
district judge consistent with this screening order.”
(ECF No. 8., p. 8.) The Court also warned Plaintiff that
“failure to comply with this order may result in the
dismissal of this action.” (Id.)
It has
been more than two 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.[1] Accordingly, for the reasons set forth in
the screening order, the Court recommends that
Plaintiff's case be dismissed for failure to state a
claim upon which relief can be granted. (ECF No. 9.) The
Court will also recommend that Plaintiff's case be
dismissed for failure to comply with a Court order and
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. 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.
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, “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
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 Plaintiff's
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.
Finally,
because public policy favors disposition on the merits, this
factor weighs against dismissal. Id.
After
weighing the factors, the Court finds that dismissal with
prejudice is appropriate. Accordingly, the Court HEREBY
RECOMMENDS that:
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.
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
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 ...