(PC) Penaloza v. Certain Fresno County Deputies

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 CRISTIAN JESUS PENALOZA, Case No. 1:23-cv-01477-KES-EPG (PC) 11 Plaintiff, 12 FINDINGS AND RECOMMENDATIONS v. TO DISMISS THIS ACTION WITHOUT 13 PREJUDICE FOR FAILURE TO CERTAIN FRESNO COUNTY DEPUTIES, PROSECUTE AND FAILURE TO 14 COMPLY WITH COURT’S ORDERS Defendants. 15 OBJECTIONS, IF ANY, 16 DUE WITHIN 30 DAYS 17 18 Plaintiff Cristian Jesus Penaloza is confined in Fresno County Jail (FCJ) and proceeds 19 pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 Plaintiff alleges that he was assaulted by two male Fresno County Deputies while in custody. 21 For reasons stated below, the Court recommends that this case be dismissed without 22 prejudice for failure to prosecute and failure to comply with the Court’s orders. 24 Plaintiff filed a Second Amended Complaint (SAC) on October 31, 2024. (ECF No. 25 16). Plaintiff alleged that on March 7, 2022, he was assaulted by two male Fresno County 26 Deputies. (Id.). On November 22, 2024, the Court screened Plaintiff’s Second Amended 27 Complaint and found that Plaintiff’s Eighth Amendment excessive force claim against John 28 Doe 1 and John Doe 2 should proceed past screening. (ECF No. 17). 1 Because the identity of Defendants is unknown to Plaintiff, on November 26, 2024, the 2 Court issued an order authorizing issuance of subpoena deuces tecum for the purpose of 3 discovering identities of the officers who Plaintiff alleges assaulted him. (ECF No. 18). The 4 Court sent Plaintiff subpoena and service forms that Plaintiff needed to fill out and return to the 5 Court within 30 days, so that the Court may direct U.S. Marshals service to serve these 6 subpoenas. (Id. at 3). Plaintiff has not returned the subpoena forms and the deadline to do so 7 has passed. 8 Both the Screening Order (ECF No. 17) and the Order Authorizing Subpoenas and the 9 accompanying subpoena forms sent to Plaintiff (ECF No. 18) were returned to the Court as 10 undeliverable on December 16 and 13, 2024, respectively. Plaintiff has not updated his mailing 11 address or otherwise communicated with the Court. Per Local Rule 183 in effect at the time,1 12 the deadline to do so has also passed. 14 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure 15 to comply with court orders and to prosecute. In determining whether to dismiss an action 16 under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court 17 must weigh the following factors: (1) the public’s interest in expeditious resolution of 18 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 19 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 20 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th 21 Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 23 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 24 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 25 dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 26 (internal quotation marks omitted). 27 28 1 The Rule has since been amended, effective January 1, 2025, to require plaintiff to notify the Court and opposing parties of the change in address within 30 days, instead of 60 days. 1 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in 2 the best position to determine whether the delay in a particular case interferes with docket 3 management and the public interest.” Id. Here, Plaintiff has failed to return completed 4 subpoena forms, update his address, or otherwise communicate with the Court. Allowing this 5 case to proceed further without any indication that Plaintiff intends to prosecute his case is a 6 waste of judicial resources. See Hall v. San Joaquin County Jail, No. 2:13-cv-0324 AC P, 2018 7 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not continue to drag out these 8 proceedings when it appears that plaintiffs have no intention of diligently pursuing this case.”). 9 Therefore, the second factor weighs in favor of dismissal. 10 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 11 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 12 F.3d at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that 13 witnesses’ memories will fade and evidence will become stale,” id. at 643, and it is Plaintiff’s 14 failure to comply with a court order that is causing delay and preventing this case from 15 progressing. Therefore, the third factor weighs in favor of dismissal. 16 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in 17 the proceedings there is little available to the Court which would constitute a satisfactory lesser 18 sanction while protecting the Court from further unnecessary expenditure of its scarce 19 resources. Monetary sanctions are of little use, considering Plaintiff’s incarceration and in 20 forma pauperis status. (See ECF No. 8). And, given the stage of these proceedings, the 21 preclusion of evidence or witnesses is not available. Moreover, dismissal without prejudice is 22 the lesser sanction available to the Court. Under Federal Rule of Civil Procedure 41(b), a court 23 may dismiss an action with prejudice for failure to comply with court orders and to prosecute. 24 Fed. R. Civ. P. (41)(b); see also Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962) (holding 25 that Rule 41(b) allows sua sponte dismissal by the Court because “[t]he authority of a court to 26 dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ 27 governed not by rule or statute but by the control necessarily vested in courts to manage their 28 1 || own affairs so as to achieve the orderly and expeditious disposition of cases.”) Therefore, the 2 || fourth factor also weighs in favor of dismissal. 3 Finally, because public policy favors disposition on the merits, this factor weighs 4 || against dismissal. Pagtalunan, 291 F.3d at 643. 6 After weighing the factors, the Court finds that dismissal without prejudice is 7 || appropriate. 8 Accordingly, IT IS RECOMMENDED that: 9 1. This action be dismissed without prejudice under Federal Rule of Civil 10 Procedure 41(b) for failure to prosecute and failure to follow Court’s orders; and 11 2. The Clerk of Court be directed to close this case. 12 These findings and recommendations will be submitted to the United States district 13 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 14 || thirty days after being served with these findings and recommendations, Plaintiff may file 15 || written objections with the Court. The document should be captioned “Objections to Magistrate 16 || Judge’s Findings and Recommendations.” Any objections shall be limited to no more than 15 17 || pages including exhibits. 18 Plaintiff is advised that failure to file objections within the specified time may result in 19 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 20 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 Dated: February 25, 2025 □□□ heey 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28