Lewis v. Moralez

Opinion

1 2 3 4 5 6 7 8 9 10 11 12 13 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 LISA MARTINEZ LEWIS, Case No. 1:22-cv-00556-ADA-EPG 18 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE 19 v. DISMISSED, WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE AND COMPLY 20 AVA MORALEZ, et al., WITH THE COURT’S ORDER 21 Defendants. OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 22

23 24 Plaintiff Lisa Martinez Lewis is proceeding pro se and in forma pauperis in this civil 25 action. (ECF No. 1). On July 26, 2022, the Court screened Plaintiff’s complaint, concluding that 26 Plaintiff failed to state any cognizable claims. (ECF No. 4). The screening order directed Plaintiff 27 to either file a First Amended Complaint or notify the Court in writing that she wished to stand on 28 her complaint, within thirty days. (ECF No. 4). Plaintiff has not followed either course of action 1 and the deadline to do so has passed. Because Plaintiff has failed to prosecute this case and 2 comply with the Court’s order, the Court recommends dismissal of this case without prejudice. 3 I. BACKGROUND 4 Plaintiff filed this lawsuit on May 10, 2022, generally alleging that Madera Police 5 Department and Ava Moralez discriminated against her and took nude photos of her. (ECF No. 1, 6 p. 5). On July 26, 2022, the Court screened Plaintiff’s complaint and found that it failed to state 7 any cognizable claims. (ECF No. 4, p. 1). The Court provided Plaintiff with relevant legal 8 standards regarding Section 1983, Federal Rule of Civil Procedure Rule 8(a), and unreasonable 9 search and seizure under the Fourth Amendment. (Id. at 3-6). The Court gave Plaintiff leave to 10 file to file an amended complaint, or in the alternative, notify the Court that she intended to stand 11 on her complaint. (Id. at 6). The Court advised Plaintiff that if she chose to stand on the filed 12 complaint, the Court would issue findings and recommendations to a district judge recommending 13 dismissal of the action consistent with the Court’s screening order. (Id. at 7). Finally, the Court 14 provided that failure to comply with the screening order “may result in the dismissal of this 15 action.” (Id.) 16 II. ANALYSIS 17 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 18 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 19 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 20 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 21 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 22 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 23 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 24 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 25 first factor weighs in favor of dismissal. 26 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 27 determine whether the delay in a particular case interferes with docket management and the 28 public interest.” Id. Here, Plaintiff has failed to file an amended complaint or otherwise notify the 1 Court that she wants to stand on her complaint as required by a court order. Allowing this case to 2 proceed further without any indication that Plaintiff intends to prosecute her case is a waste of 3 judicial resources. See Hall v. San Joaquin County Jail, No. 2:13-cv-0324 AC P, 2018 WL 4 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not continue to drag out these 5 proceedings when it appears that plaintiff has no intention of diligently pursuing this case.”). 6 Therefore, the second factor weighs in favor of dismissal. 7 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 8 and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991). 9 However, “delay inherently increases the risk that witnesses’ memories will fade and evidence 10 will become stale,” id. at 643, and it is Plaintiffs’ failure to comply with a court order that is 11 causing delay and preventing this case from progressing. Therefore, the third factor weighs in 12 favor of dismissal. 13 As for the availability of lesser sanctions, given that Plaintiff has chosen not to prosecute 14 this action and fails to comply with the Court’s order, despite being warned of possible dismissal, 15 there is little available to the Court which would constitute a satisfactory lesser sanction while 16 protecting the Court from unnecessary expenditure of its scarce resources. (See ECF No. 4). 17 Monetary sanctions are of little use, considering Plaintiff’s in forma pauperis status. And given 18 the stage of these proceedings, the preclusion of evidence or witnesses is not available. 19 Additionally, because the dismissal being considered in this case is without prejudice, the Court is 20 stopping short of using the harshest possible sanction of dismissal with prejudice. 21 Finally, because public policy favors disposition on the merits, this factor weighs against 22 dismissal. Pagtalunan, 291 F.3d at 643. 23 III. CONCLUSION AND RECOMMENDATIONS 24 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 25 Accordingly, the Court HEREBY RECOMMENDS that: 26 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 27 prosecute and comply with the Court’s order; and 28 2. The Clerk of Court be directed to close this case. 1 These findings and recommendations are submitted to the United States district judge 2 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 3 | (14) days after being served with these findings and recommendations, Plaintiff may file written 4 | objections with the court. Such a document should be captioned “Objections to Magistrate 5 | Judge’s Findings and Recommendations.” 6 Plaintiff is advised that failure to file objections within the specified time may result in the 7 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 8 || Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. 11 | Dated: _ October 26, 2022 [sf ey 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28