1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANTOINE DESHAWN BARNES, Case No. 1:20-cv-00333-DAD-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 12 v. DISMISSED, WITHOUT PREJUDICE, BECAUSE OF PLAINTIFF’S FAILURE TO 13 J. BLACKBURN, et al., PROSECUTE AND COMPLY WITH THE COURT’S ORDERS 14 Defendants. (ECF Nos. 32, 36, 39) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 Plaintiff Antoine Deshawn Barnes, is an inmate1 proceeding pro se and in forma pauperis, 18 filed the complaint initiating this civil rights action on March 4, 2020. (ECF No. 1). Because 19 Plaintiff has failed to prosecute this case and comply with the Court’s orders, the Court 20 recommends dismissal of this case. 21 I. BACKGROUND 22 Plaintiff filed this lawsuit on March 4, 2020, against four persons (J. Blackburn, M. 23 Martin, Hill, and Brooks) whom he identified as “sheriffs” at the Kings County Jail. (ECF No. 1). 24 Plaintiff brought claims concerning excessive force, conspiracy, deliberate indifference to his 25 serious medical needs, retaliation, denial of access to a prison grievance system, and citizen’s 26
27 1 It is not clear from the face of the complaint whether Plaintiff is a pretrial detainee or convicted prisoner. The motion for injunctive relief indicates he is a prisoner, as it references his being at Hanford County Jail because CDCR 28 is closed for intake. Regardless, the distinction is not material here. 1 arrest. (ECF Nos. 1, 11). Generally, these claims stemmed from Plaintiff’s allegations that 2 Defendants used excessive force in trying to restrain him and the subsequent denial of medical 3 care for his injuries. In screening the complaint, the Court concluded that Plaintiff stated 4 cognizable claims against Defendants Blackburn, Brooks and Hill for excessive force and 5 conspiracy but that Plaintiff “failed to state any other cognizable claims.” (ECF No. 11, p. 11). 6 On June 13, 2020, Plaintiff filed his first amended complaint, this time naming only 7 Blackburn, Brooks, and Hill as defendants in the caption. (ECF No. 13, p. 1). Plaintiff brought 8 claims concerning excessive force, conspiracy, retaliation, and allegations implicating the writ of 9 habeas corpus. (ECF Nos. 13, 16). In reviewing the first amended complaint, the Court concluded 10 that Plaintiff stated cognizable claims against Defendants Blackburn, Brooks and Hill for 11 excessive force and conspiracy but that Plaintiff “failed to state any other cognizable claims.” 12 (ECF No. 16, p. 7). After Plaintiff filed no objections within the period to do so, the District 13 Court adopted the undersigned’s findings and recommendations and dismissed Plaintiff’s non- 14 cognizable claims. (ECF No. 19). Thereafter, Defendants answered the complaint. (ECF No. 28). 15 After this Court had screened the initial complaint, but before Plaintiff filed his first 16 amended complaint, Plaintiff moved for injunctive relief seeking to “immediately” be paid 17 $600,000 in cash. (ECF No. 12). Additionally, Plaintiff sought “nationwide on illimating all 18 ‘qualified immunity’ making all CCPOA unions, security guards, police officers, sheriffs, an 19 CDCR correctional officers ‘liable’ for all civil suits.” (Id. at 1). This Court issued findings and 20 recommendations, recommending the denial of Plaintiff’s motion for injunctive relief. (ECF No. 21 15). Plaintiff filed no objections, and the District Judge adopted the undersigned’s findings and 22 recommendations. (ECF No. 19). 23 Plaintiff also filed two motions for temporary restraining orders. (ECF Nos. 17, 18). The 24 first motion sought the firing of a non-party referred to as “White Supremist Sheriff Trevoto” for 25 allegedly retaliating against him for pursuing this case. (ECF No. 17, pp. 1-3). Plaintiff again 26 sought the immediate award of $600,000 cash and asked the Court to take away the assets of 27 unspecified corrections officers, including “taking [their] houses, cars, [and] boats.” (Id. at 4). 28 The second motion alleged that Defendant Hill “set [him] up again” by “placing [him] in a 1 cement bubble with all doors closed to w[h]ere [he] can[’]t see T.V.” (ECF No. 18, p. 2). Plaintiff 2 once again requested $600,000 cash and restraining orders against Deputy Hill and Deputy J. 3 Blackburn. (Id.). In addition, Plaintiff “demand[ed] President Trump be summoned ‘immediately’ 4 on personally walking into Hanford County Jail with National Guards, to cell B6-85 on releasing 5 [him] for [his] life is at ‘grave danger.’” (Id.). 6 This Court issued findings and recommendations, recommending the denial of Plaintiff’s 7 motions for temporary restraining order, noting that Plaintiff was in fact seeking injunctive relief, 8 and his requests were not well taken. (ECF No. 21). Plaintiff filed no objections, and the District 9 Court adopted the undersigned’s findings and recommendations. (ECF No. 25). 10 II. ORDERS FOR INITIAL DISCLOSURES AND SCHEDULING CONFERENCE 11 STATEMENT 12 On January 6, 2021, the Court entered an order which, in relevant part, required the parties 13 to exchange initial disclosures, identifying their witnesses and the documents supporting their 14 claims and defenses. (Id.). The order also required the parties to file scheduling conference 15 statements by March 31, 2021, which statements were to identify, among other things, the parties’ 16 claims and/or defenses, the location of potentially relevant documents, and the discovery that the 17 party intends to take. (Id. at 3-4). 18 On March 29, 2021, Plaintiff filed a document titled “initial disclosures”; however, rather 19 than identifying witnesses and documents, Plaintiff’s filing again sought injunctive relief, such as 20 requesting the FBI to investigate correction officers. (ECF No. 37, p. 2). It also attached 21 Defendant’s initial disclosures. 22 On February 16, 2021, the Court vacated the mandatory scheduling conference but 23 retained the requirements for the parties to exchange initial disclosures and to file scheduling 24 conference statements no later than March 31, 2021, noting that the Court would issue a 25 scheduling order after reviewing the parties’ statements. (ECF No. 36). On March 31, 2021, 26 Defendants filed their initial scheduling conference statement. (ECF No. 38). Plaintiff did not file 27 his statement by the deadline and never requested an extension of time to do so. 28 Accordingly, on April 20, 2021, the Court sua sponte ordered that Plaintiff be granted 21 1 additional days to file his scheduling conference statement. (ECF No. 39). Plaintiff was warned 2 that his failure to file a scheduling conference statement within 21 days “may result in the 3 dismissal of this action.” (Id. at 2). The 21-day period for Plaintiff to file his scheduling 4 conference statement has now passed without Plaintiff filing a statement or any request for 5 extension of time to file one.2 6 III. ANALYSIS 7 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 8 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 9 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 10 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 11 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 12 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 13 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 14 (quoting Yourish v.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANTOINE DESHAWN BARNES, Case No. 1:20-cv-00333-DAD-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 12 v. DISMISSED, WITHOUT PREJUDICE, BECAUSE OF PLAINTIFF’S FAILURE TO 13 J. BLACKBURN, et al., PROSECUTE AND COMPLY WITH THE COURT’S ORDERS 14 Defendants. (ECF Nos. 32, 36, 39) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 Plaintiff Antoine Deshawn Barnes, is an inmate1 proceeding pro se and in forma pauperis, 18 filed the complaint initiating this civil rights action on March 4, 2020. (ECF No. 1). Because 19 Plaintiff has failed to prosecute this case and comply with the Court’s orders, the Court 20 recommends dismissal of this case. 21 I. BACKGROUND 22 Plaintiff filed this lawsuit on March 4, 2020, against four persons (J. Blackburn, M. 23 Martin, Hill, and Brooks) whom he identified as “sheriffs” at the Kings County Jail. (ECF No. 1). 24 Plaintiff brought claims concerning excessive force, conspiracy, deliberate indifference to his 25 serious medical needs, retaliation, denial of access to a prison grievance system, and citizen’s 26
27 1 It is not clear from the face of the complaint whether Plaintiff is a pretrial detainee or convicted prisoner. The motion for injunctive relief indicates he is a prisoner, as it references his being at Hanford County Jail because CDCR 28 is closed for intake. Regardless, the distinction is not material here. 1 arrest. (ECF Nos. 1, 11). Generally, these claims stemmed from Plaintiff’s allegations that 2 Defendants used excessive force in trying to restrain him and the subsequent denial of medical 3 care for his injuries. In screening the complaint, the Court concluded that Plaintiff stated 4 cognizable claims against Defendants Blackburn, Brooks and Hill for excessive force and 5 conspiracy but that Plaintiff “failed to state any other cognizable claims.” (ECF No. 11, p. 11). 6 On June 13, 2020, Plaintiff filed his first amended complaint, this time naming only 7 Blackburn, Brooks, and Hill as defendants in the caption. (ECF No. 13, p. 1). Plaintiff brought 8 claims concerning excessive force, conspiracy, retaliation, and allegations implicating the writ of 9 habeas corpus. (ECF Nos. 13, 16). In reviewing the first amended complaint, the Court concluded 10 that Plaintiff stated cognizable claims against Defendants Blackburn, Brooks and Hill for 11 excessive force and conspiracy but that Plaintiff “failed to state any other cognizable claims.” 12 (ECF No. 16, p. 7). After Plaintiff filed no objections within the period to do so, the District 13 Court adopted the undersigned’s findings and recommendations and dismissed Plaintiff’s non- 14 cognizable claims. (ECF No. 19). Thereafter, Defendants answered the complaint. (ECF No. 28). 15 After this Court had screened the initial complaint, but before Plaintiff filed his first 16 amended complaint, Plaintiff moved for injunctive relief seeking to “immediately” be paid 17 $600,000 in cash. (ECF No. 12). Additionally, Plaintiff sought “nationwide on illimating all 18 ‘qualified immunity’ making all CCPOA unions, security guards, police officers, sheriffs, an 19 CDCR correctional officers ‘liable’ for all civil suits.” (Id. at 1). This Court issued findings and 20 recommendations, recommending the denial of Plaintiff’s motion for injunctive relief. (ECF No. 21 15). Plaintiff filed no objections, and the District Judge adopted the undersigned’s findings and 22 recommendations. (ECF No. 19). 23 Plaintiff also filed two motions for temporary restraining orders. (ECF Nos. 17, 18). The 24 first motion sought the firing of a non-party referred to as “White Supremist Sheriff Trevoto” for 25 allegedly retaliating against him for pursuing this case. (ECF No. 17, pp. 1-3). Plaintiff again 26 sought the immediate award of $600,000 cash and asked the Court to take away the assets of 27 unspecified corrections officers, including “taking [their] houses, cars, [and] boats.” (Id. at 4). 28 The second motion alleged that Defendant Hill “set [him] up again” by “placing [him] in a 1 cement bubble with all doors closed to w[h]ere [he] can[’]t see T.V.” (ECF No. 18, p. 2). Plaintiff 2 once again requested $600,000 cash and restraining orders against Deputy Hill and Deputy J. 3 Blackburn. (Id.). In addition, Plaintiff “demand[ed] President Trump be summoned ‘immediately’ 4 on personally walking into Hanford County Jail with National Guards, to cell B6-85 on releasing 5 [him] for [his] life is at ‘grave danger.’” (Id.). 6 This Court issued findings and recommendations, recommending the denial of Plaintiff’s 7 motions for temporary restraining order, noting that Plaintiff was in fact seeking injunctive relief, 8 and his requests were not well taken. (ECF No. 21). Plaintiff filed no objections, and the District 9 Court adopted the undersigned’s findings and recommendations. (ECF No. 25). 10 II. ORDERS FOR INITIAL DISCLOSURES AND SCHEDULING CONFERENCE 11 STATEMENT 12 On January 6, 2021, the Court entered an order which, in relevant part, required the parties 13 to exchange initial disclosures, identifying their witnesses and the documents supporting their 14 claims and defenses. (Id.). The order also required the parties to file scheduling conference 15 statements by March 31, 2021, which statements were to identify, among other things, the parties’ 16 claims and/or defenses, the location of potentially relevant documents, and the discovery that the 17 party intends to take. (Id. at 3-4). 18 On March 29, 2021, Plaintiff filed a document titled “initial disclosures”; however, rather 19 than identifying witnesses and documents, Plaintiff’s filing again sought injunctive relief, such as 20 requesting the FBI to investigate correction officers. (ECF No. 37, p. 2). It also attached 21 Defendant’s initial disclosures. 22 On February 16, 2021, the Court vacated the mandatory scheduling conference but 23 retained the requirements for the parties to exchange initial disclosures and to file scheduling 24 conference statements no later than March 31, 2021, noting that the Court would issue a 25 scheduling order after reviewing the parties’ statements. (ECF No. 36). On March 31, 2021, 26 Defendants filed their initial scheduling conference statement. (ECF No. 38). Plaintiff did not file 27 his statement by the deadline and never requested an extension of time to do so. 28 Accordingly, on April 20, 2021, the Court sua sponte ordered that Plaintiff be granted 21 1 additional days to file his scheduling conference statement. (ECF No. 39). Plaintiff was warned 2 that his failure to file a scheduling conference statement within 21 days “may result in the 3 dismissal of this action.” (Id. at 2). The 21-day period for Plaintiff to file his scheduling 4 conference statement has now passed without Plaintiff filing a statement or any request for 5 extension of time to file one.2 6 III. ANALYSIS 7 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 8 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 9 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 10 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 11 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 12 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 13 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 14 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 15 factor weighs in favor of dismissal. 16 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 17 determine whether the delay in a particular case interferes with docket management and the 18 public interest.” Id. Here, Plaintiff’s failure to file a scheduling conference statement as required 19 by the Court’s orders (see ECF Nos. 32, 36, 39) and otherwise prosecute this action is delaying 20 the case. Specifically, the scheduling statement is an important document for the Court to use in 21 making the schedule in this case. It also includes important information for the parties, such as 22 “the location of potentially relevant documents,” and “when the parties will be prepared to 23 participate in a settlement conference.” Plaintiff’s failure to file his statement by the initial 24 deadline of March 31, 2021, has delayed this Court’s ability to issue a scheduling order for 25 approximately two months. And without being able to issue a scheduling order, this case is stalled 26 from progressing further with discovery and other case-related deadlines. Therefore, the second 27 factor weighs in favor of dismissal.
28 2 Plaintiff has not filed anything since March 29, 2021. (ECF No. 37). 1 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 2 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 3 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 4 id. at 643, and it is Plaintiff’s failure to prosecute this case and comply with the Court’s orders 5 that is causing delay and preventing this case from progressing. Therefore, the third factor 6 weighs in favor of dismissal. 7 As for the availability of lesser sanctions, given that Plaintiff has chosen not to prosecute 8 this action and fails to comply with the Court’s orders, despite being warned of possible 9 dismissal, there is little available to the Court which would constitute a satisfactory lesser 10 sanction while protecting the Court from further unnecessary expenditure of its scarce resources. 11 Monetary sanctions are of little use, considering Plaintiff’s in forma pauperis status. And given 12 the stage of these proceedings, the preclusion of evidence or witnesses is not available. 13 Additionally, because the dismissal being considered in this case is without prejudice, the Court is 14 stopping short of using the harshest possible sanction of dismissal with prejudice. 15 Finally, because public policy favors disposition on the merits, this factor weighs against 16 dismissal. Id. 17 IV. CONCLUSION AND RECOMMENDATIONS 18 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 19 Accordingly, the Court HEREBY RECOMMENDS that: 20 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 21 prosecute and comply with the Court’s orders; and 22 2. The Clerk of Court be directed to close this case. 23 These findings and recommendations are submitted to the United States district judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 25 (14) days after being served with these findings and recommendations, any party may file written 26 objections with the court. Such a document should be captioned “Objections to Magistrate 27 Judge’s Findings and Recommendations.” 28 \\\ 1 Any reply to the objections shall be served and filed within fourteen (14) days after 2 | service of the objections. 3 4 IT IS SO ORDERED. S| Dated: _ June 1, 2021 hey — 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28