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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 EDWARD TORRES, Case No. 1:22-cv-01536-KES-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS 12 TO DISMISS THIS ACTION v. WITHOUT PREJUDICE 13 FOR FAILURE TO PROSECUTE JAYSON QUICK, et al., AND FAILURE TO COMPLY WITH 14 COURT’S ORDERS Defendants. 15 OBJECTIONS, IF ANY, 16 DUE WITHIN 30 DAYS
17 18 Plaintiff Edward Torres is proceeding pro se and in forma pauperis in this civil rights 19 action filed pursuant to 42 U.S.C. § 1983. For reasons stated below, the Court again 20 recommends that this case be dismissed without prejudice for failure to prosecute. 21 I. BACKGROUND 22 Plaintiff filed the Complaint commencing this action on November 30, 2022. (ECF No. 23 1). The Court screened Plaintiff’s complaint and found that the following claims should 24 proceed past the screening stage: Plaintiff’s Eighth Amendment excessive force claims against 25 defendants Quick, Garza, Garcia, Valadez, Prince, and Martinez; his Eighth Amendment failure 26 to protect claims against defendants Quick, Garza, Garcia, Valadez, Prince, and Martinez; and 27 his Eighth Amendment claim against defendant Ontiveros for deliberate indifference to his 28 serious medical needs. (Id.). 1 At the start of this case, the Court issued Informational Order, warning Plaintiff he 2 “must keep the Court and opposing parties informed of the party’s correct current address. 3 Local Rule 182(f). If a party moves to a different address without filing and serving a notice of 4 change of address, documents served at a party’s old address of record shall be deemed 5 received even if not actually received. Id.” (ECF No. 4 at 5). The Court also cautioned Plaintiff 6 that failure to follow the Court’s orders and all applicable rules “will be grounds for imposition 7 of sanctions which may include dismissal of the case.” (Id. at 1). 8 After all the defendants were served and appeared in this action, on February 29, 2024, 9 the Court ordered parties to file scheduling statements within 30 days. (ECF No. 50). However, 10 this order was returned to Court on March 8, 2024, marked as “Undeliverable, Not in Custody.” 11 While Defendants timely filed their scheduling statements (ECF Nos. 53, 54), Plaintiff 12 failed to do so within the deadline set by the Court’s order (ECF No. 50). On April 10, 2024, 13 the Court issued a minute order granting Plaintiff a single sua sponte extension, until April 24, 14 2024, to file his statement. (ECF No. 55). The Court also advised Plaintiff that “that failure to 15 file his statement by this date may result in the dismissal of this case.” (Id.; see also ECF No. 4 16 at 1 (failure to follow the Court’s orders and all applicable rules “will be grounds for imposition 17 of sanctions which may include dismissal of the case.”)) This order was likewise returned to 18 Court on April 29, 2024, marked as “Undeliverable, Not in Custody.” 19 After the extended deadline to respond to the Court’s order to file scheduling statement 20 had passed, and Plaintiff still had not filed his scheduling statement, updated his address, or had 21 otherwise communicated with the Court, on May 9, 2024, the Court issued Findings and 22 Recommendations to dismiss this action for failure to prosecute and failure to comply with 23 Court’s orders. (ECF No. 56). The Court gave Plaintiff 30 days to file objections to Findings 24 and Recommendations. (Id.) 25 On May 15, 2024, however, Plaintiff filed a motion for an extension of time to respond 26 to the Court’s Findings and Recommendations. (ECF No. 57). The Court granted Plaintiff an 27 additional thirty-days, until June 17, 2024, to file his scheduling and discovery statement. (ECF 28 1 No. 58). The Court also stated that it would vacate the Findings and Recommendations if 2 Plaintiff timely filed his scheduling and discovery statement by the new deadline. (Id. at 4). 3 Plaintiff finally filed his scheduling and discovery statement on May 31, 2024. (ECF 4 No. 59). The Court therefore vacated (ECF No. 60) its findings and recommendations to 5 dismiss this action issued on May 9, 2024. 6 The Court also issued a scheduling order (ECF No. 61), and then on July 11, 2024, a 7 revised screening order (ECF No. 62)1 and a discovery order for parties to exchange certain 8 documents (ECF No. 63). All three of the Court’s orders (ECF Nos. 61, 62, 63) were once 9 again returned to the Court marked as undeliverable. (See docket). Plaintiff did not respond to 10 the screening order. Moreover, Defendant Ontiveros filed a motion on August 19, 2024, 11 indicating that she has served discovery requests on Plaintiff “on July 8, 2024, via U.S. mail. 12 However, on July 25, 2024, these discovery requests were returned as non-deliverable and 13 unable to be forwarded.” (ECF No. 64 at 1). 14 On August 21, 2024, the Court finally received Notice of Change of Address from 15 Plaintiff, indicating that he again returned to Madera County Jail. (ECF No. 66). The Court re- 16 served Plaintiff with the recently-issued orders (ECF Nos. 61, 62, 63), and extended the 17 deadlines to respond to the Revised Screening Order (ECF No. 62) and to the discovery order 18 (ECF No. 63), until September 23, 2024. 19 The extended deadline to respond to the Court’s Revised Screening Order (ECF No. 62) 20 has passed once again. Yet, Plaintiff still has not filed an amended complaint, notified the Court 21 of his intention to proceed with the cognizable claims, expressed a desire to stand on his 22 original complaint, or otherwise communicated with the Court. (ECF No. 62 at 18–19). 23 24 25
26 1 The Court issued the revised screening order to reflect that—based on the new information in 27 Defendant Ontiveros’s scheduling statement—Plaintiff’s claims against Defendants should proceed under the Fourteenth Amendment legal standards for pretrial detainees awaiting adjudication of criminal 28 charges, rather than the Eighth Amendment legal standards for individuals who are confined after being convicted of a crime. (ECF No. 62 at 2). 1 On September 25, 2024, Defendants filed a Motion for Summary Judgment based on 2 Plaintiff’s failure to exhaust available administrative remedies. (ECF No. 70). It remains 3 pending. 4 II. LEGAL STANDARDS 5 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure 6 to comply with court orders and to prosecute. In determining whether to dismiss an action 7 under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court 8 must weigh the following factors: (1) the public’s interest in expeditious resolution of 9 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 10 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 11 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th 12 Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 13 III. ANALYSIS 14 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 15 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 16 dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 17 (internal quotation marks omitted).
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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 EDWARD TORRES, Case No. 1:22-cv-01536-KES-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS 12 TO DISMISS THIS ACTION v. WITHOUT PREJUDICE 13 FOR FAILURE TO PROSECUTE JAYSON QUICK, et al., AND FAILURE TO COMPLY WITH 14 COURT’S ORDERS Defendants. 15 OBJECTIONS, IF ANY, 16 DUE WITHIN 30 DAYS
17 18 Plaintiff Edward Torres is proceeding pro se and in forma pauperis in this civil rights 19 action filed pursuant to 42 U.S.C. § 1983. For reasons stated below, the Court again 20 recommends that this case be dismissed without prejudice for failure to prosecute. 21 I. BACKGROUND 22 Plaintiff filed the Complaint commencing this action on November 30, 2022. (ECF No. 23 1). The Court screened Plaintiff’s complaint and found that the following claims should 24 proceed past the screening stage: Plaintiff’s Eighth Amendment excessive force claims against 25 defendants Quick, Garza, Garcia, Valadez, Prince, and Martinez; his Eighth Amendment failure 26 to protect claims against defendants Quick, Garza, Garcia, Valadez, Prince, and Martinez; and 27 his Eighth Amendment claim against defendant Ontiveros for deliberate indifference to his 28 serious medical needs. (Id.). 1 At the start of this case, the Court issued Informational Order, warning Plaintiff he 2 “must keep the Court and opposing parties informed of the party’s correct current address. 3 Local Rule 182(f). If a party moves to a different address without filing and serving a notice of 4 change of address, documents served at a party’s old address of record shall be deemed 5 received even if not actually received. Id.” (ECF No. 4 at 5). The Court also cautioned Plaintiff 6 that failure to follow the Court’s orders and all applicable rules “will be grounds for imposition 7 of sanctions which may include dismissal of the case.” (Id. at 1). 8 After all the defendants were served and appeared in this action, on February 29, 2024, 9 the Court ordered parties to file scheduling statements within 30 days. (ECF No. 50). However, 10 this order was returned to Court on March 8, 2024, marked as “Undeliverable, Not in Custody.” 11 While Defendants timely filed their scheduling statements (ECF Nos. 53, 54), Plaintiff 12 failed to do so within the deadline set by the Court’s order (ECF No. 50). On April 10, 2024, 13 the Court issued a minute order granting Plaintiff a single sua sponte extension, until April 24, 14 2024, to file his statement. (ECF No. 55). The Court also advised Plaintiff that “that failure to 15 file his statement by this date may result in the dismissal of this case.” (Id.; see also ECF No. 4 16 at 1 (failure to follow the Court’s orders and all applicable rules “will be grounds for imposition 17 of sanctions which may include dismissal of the case.”)) This order was likewise returned to 18 Court on April 29, 2024, marked as “Undeliverable, Not in Custody.” 19 After the extended deadline to respond to the Court’s order to file scheduling statement 20 had passed, and Plaintiff still had not filed his scheduling statement, updated his address, or had 21 otherwise communicated with the Court, on May 9, 2024, the Court issued Findings and 22 Recommendations to dismiss this action for failure to prosecute and failure to comply with 23 Court’s orders. (ECF No. 56). The Court gave Plaintiff 30 days to file objections to Findings 24 and Recommendations. (Id.) 25 On May 15, 2024, however, Plaintiff filed a motion for an extension of time to respond 26 to the Court’s Findings and Recommendations. (ECF No. 57). The Court granted Plaintiff an 27 additional thirty-days, until June 17, 2024, to file his scheduling and discovery statement. (ECF 28 1 No. 58). The Court also stated that it would vacate the Findings and Recommendations if 2 Plaintiff timely filed his scheduling and discovery statement by the new deadline. (Id. at 4). 3 Plaintiff finally filed his scheduling and discovery statement on May 31, 2024. (ECF 4 No. 59). The Court therefore vacated (ECF No. 60) its findings and recommendations to 5 dismiss this action issued on May 9, 2024. 6 The Court also issued a scheduling order (ECF No. 61), and then on July 11, 2024, a 7 revised screening order (ECF No. 62)1 and a discovery order for parties to exchange certain 8 documents (ECF No. 63). All three of the Court’s orders (ECF Nos. 61, 62, 63) were once 9 again returned to the Court marked as undeliverable. (See docket). Plaintiff did not respond to 10 the screening order. Moreover, Defendant Ontiveros filed a motion on August 19, 2024, 11 indicating that she has served discovery requests on Plaintiff “on July 8, 2024, via U.S. mail. 12 However, on July 25, 2024, these discovery requests were returned as non-deliverable and 13 unable to be forwarded.” (ECF No. 64 at 1). 14 On August 21, 2024, the Court finally received Notice of Change of Address from 15 Plaintiff, indicating that he again returned to Madera County Jail. (ECF No. 66). The Court re- 16 served Plaintiff with the recently-issued orders (ECF Nos. 61, 62, 63), and extended the 17 deadlines to respond to the Revised Screening Order (ECF No. 62) and to the discovery order 18 (ECF No. 63), until September 23, 2024. 19 The extended deadline to respond to the Court’s Revised Screening Order (ECF No. 62) 20 has passed once again. Yet, Plaintiff still has not filed an amended complaint, notified the Court 21 of his intention to proceed with the cognizable claims, expressed a desire to stand on his 22 original complaint, or otherwise communicated with the Court. (ECF No. 62 at 18–19). 23 24 25
26 1 The Court issued the revised screening order to reflect that—based on the new information in 27 Defendant Ontiveros’s scheduling statement—Plaintiff’s claims against Defendants should proceed under the Fourteenth Amendment legal standards for pretrial detainees awaiting adjudication of criminal 28 charges, rather than the Eighth Amendment legal standards for individuals who are confined after being convicted of a crime. (ECF No. 62 at 2). 1 On September 25, 2024, Defendants filed a Motion for Summary Judgment based on 2 Plaintiff’s failure to exhaust available administrative remedies. (ECF No. 70). It remains 3 pending. 4 II. LEGAL STANDARDS 5 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure 6 to comply with court orders and to prosecute. In determining whether to dismiss an action 7 under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court 8 must weigh the following factors: (1) the public’s interest in expeditious resolution of 9 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 10 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 11 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th 12 Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 13 III. ANALYSIS 14 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 15 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 16 dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 17 (internal quotation marks omitted). 18 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in 19 the best position to determine whether the delay in a particular case interferes with docket 20 management and the public interest.” Id. Here, Plaintiff has repeatedly failed to respond to 21 Court’s orders, update his address, or otherwise communicate with the Court. Allowing this 22 case to proceed further without any indication that Plaintiff intends to prosecute his case is a 23 waste of judicial resources. See Hall v. San Joaquin County Jail, No. 2:13-cv-0324 AC P, 2018 24 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not continue to drag out these 25 proceedings when it appears that plaintiffs have no intention of diligently pursuing this case.”). 26 Therefore, the second factor weighs in favor of dismissal. 27 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 28 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 1 F.3d at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that 2 witnesses’ memories will fade and evidence will become stale,” id. at 643, and it is Plaintiff’s 3 repeated failure to comply with numerous court orders—even after being warned that the action 4 might be dismissed unless he complies—that is causing delay and preventing this case from 5 progressing. Therefore, the third factor weighs in favor of dismissal. 6 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in 7 the proceedings there is little available to the Court which would constitute a satisfactory lesser 8 sanction while protecting the Court from further unnecessary expenditure of its scarce 9 resources. Monetary sanctions are of little use, considering Plaintiff’s in forma pauperis status. 10 (See ECF Nos. 9, 12). And, given the stage of these proceedings, the preclusion of evidence or 11 witnesses is not available. Moreover, dismissal without prejudice is the lesser sanction available 12 to the Court. Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action with 13 prejudice for failure to comply with court orders and to prosecute. Fed. R. Civ. P. (41)(b); see 14 also Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962) (holding that Rule 41(b) allows sua 15 sponte dismissal by the Court because “[t]he authority of a court to dismiss sua sponte for lack 16 of prosecution has generally been considered an ‘inherent power,’ governed not by rule or 17 statute but by the control necessarily vested in courts to manage their own affairs so as to 18 achieve the orderly and expeditious disposition of cases.”) Therefore, the fourth factor also 19 weighs in favor of dismissal. 20 Finally, because public policy favors disposition on the merits, this factor weighs 21 against dismissal. Pagtalunan, 291 F.3d at 643. 22 IV. CONCLUSION AND RECOMMENDATIONS 23 After weighing the factors, the Court finds that dismissal without prejudice is 24 appropriate. 25 Accordingly, the Court RECOMMENDS that: 26 1. This action be dismissed without prejudice under Federal Rule of Civil 27 Procedure 41(b) for failure to prosecute and failure to follow Court’s orders; 28 2. All pending deadlines and motions be terminated; and 1 3. The Clerk of Court be directed to close this case. 2 These findings and recommendations will be submitted to the United States district 3 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 4 || thirty days after being served with these findings and recommendations, Plaintiff may file 5 || written objections with the Court. The document should be captioned “Objections to Magistrate 6 || Judge’s Findings and Recommendations.” 7 Plaintiff is advised that failure to file objections within the specified time may result in 8 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 9 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 ul IT IS SO ORDERED. 12 | Dated: _ October 8, 2024 [sf ey — 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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