(PC) Kinkade v. Avenal State Prison

Opinion

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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 ROBERT WILLIAM KINKADE, Case No. 1:23-cv-00964-JLT-EPG (PC) 11 Plaintiff, FINDINGS AND 12 RECOMMENDATIONS TO DISMISS v. THIS ACTION WITHOUT PREJUDICE 13 FOR FAILURE TO PROSECUTE AND AVENAL STATE PRISON, FAILURE TO COMPLY WITH 14 COURT’S ORDERS Defendant. 15 OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS 16 17 Plaintiff Robert Kinkade is proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. For reasons stated below, the Court recommends that 19 this case be dismissed without prejudice for failure to prosecute. 20 I. BACKGROUND 21 Plaintiff filed the Complaint commencing this action on June 28, 2023. (ECF No. 1). 22 Plaintiff alleged that the water at Avenal State Prison is contaminated. The Court has screened 23 the complaint and on January 18, 2024, issued a screening order holding that Plaintiff failed to 24 state any cognizable claims. (ECF No. 10). The Court gave Plaintiff 30 days to either file an 25 amended complaint or file a statement with the Court that he wants to stand on his original 26 complaint. (Id. at 7). The Court advised Plaintiff that, if he chooses to stand on the filed 27 complaint, the Court would issue “findings and recommendations to a district judge 28 recommending dismissal of the action” consistent with the Court’s screening order. (Id.) 1 Finally, the Court has warned the Plaintiff that “Failure to comply with this order may result in 2 the dismissal of this action.” (ECF No. 10 at 7; see also ECF No. 3 at 1 (warning Plaintiff that 3 failure to follow the Court’s orders and all applicable rules “will be grounds for imposition of 4 sanctions which may include dismissal of the case.”)) 5 The deadline to respond to the Court’s screening order has now passed, and Plaintiff has 6 not filed an amended complaint or a statement with the Court that he wishes to proceed on his 7 original complaint, or had otherwise communicated with the Court. 8 II. LEGAL STANDARDS 9 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure 10 to comply with court orders and to prosecute. In determining whether to dismiss an action 11 under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court 12 must weigh the following factors: (1) the public’s interest in expeditious resolution of 13 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 14 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 15 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th 16 Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 17 III. ANALYSIS 18 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 19 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 20 dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 21 (internal quotation marks omitted). 22 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in 23 the best position to determine whether the delay in a particular case interferes with docket 24 management and the public interest.” Id. Here, Plaintiff has failed to file an amended complaint 25 or otherwise notify the Court that he wants to stand on his complaint as required by a court 26 order. Allowing this case to proceed further without any indication that Plaintiff intends to 27 prosecute his case is a waste of judicial resources. See Hall v. San Joaquin County Jail, No. 28 2:13-cv-0324 AC P, 2018 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not 1 continue to drag out these proceedings when it appears that plaintiffs have no intention of 2 diligently pursuing this case.”). Therefore, the second factor weighs in favor of dismissal. 3 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 4 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 5 F.3d at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that 6 witnesses’ memories will fade and evidence will become stale,” id. at 643, and it is Plaintiff’s 7 failure to comply with a court order that is causing delay and preventing this case from 8 progressing. Therefore, the third factor weighs in favor of dismissal. 9 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in 10 the proceedings there is little available to the Court which would constitute a satisfactory lesser 11 sanction while protecting the Court from further unnecessary expenditure of its scarce 12 resources. Monetary sanctions are of little use, considering Plaintiff’s incarceration and in 13 forma pauperis status. (See ECF Nos. 2, 7). And, given the stage of these proceedings, the 14 preclusion of evidence or witnesses is not available. Moreover, dismissal without prejudice is 15 the lesser sanction available to the Court. Under Federal Rule of Civil Procedure 41(b), a court 16 may dismiss an action with prejudice for failure to comply with court orders and to prosecute. 17 Fed. R. Civ. P. (41)(b); see also Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962) (holding 18 that Rule 41(b) allows sua sponte dismissal by the Court because “[t]he authority of a court to 19 dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ 20 governed not by rule or statute but by the control necessarily vested in courts to manage their 21 own affairs so as to achieve the orderly and expeditious disposition of cases.”) Therefore, the 22 fourth factor also weighs in favor of dismissal. 23 Finally, because public policy favors disposition on the merits, this factor weighs 24 against dismissal. Pagtalunan, 291 F.3d at 643. 25 IV. CONCLUSION AND RECOMMENDATIONS 26 After weighing the factors, the Court finds that dismissal without prejudice is 27 appropriate. 28 1 Accordingly, the Court RECOMMENDS that: 2 1. This action be dismissed without prejudice under Federal Rule of Civil Procedure 3 41(b) for failure to prosecute and failure to follow Court’s orders; and 4 2. The Clerk of Court be directed to close this case. 5 These findings and recommendations will be submitted to the United States district 6 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 7 || thirty days after being served with these findings and recommendations, Plaintiff may file 8 || written objections with the Court. The document should be captioned “Objections to Magistrate 9 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 10 || within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 11 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 12 |] 1991)). 13 14 IT IS SO ORDERED. ll Dated: _March 4, 2024 [Je hey — 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28