1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DAVID WILLIAMS, Case No. 1:21-cv-00203-JLT-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 11 v. DISMISSED, WITHOUT PREJUDICE, BECAUSE OF PLAINTIFF’S FAILURE TO 12 C. RASEY, PROSECUTE AND COMPLY WITH COURT ORDERS 13 Defendant. (ECF Nos. 3, 34, 36) 14
15 16 Plaintiff David Williams is a state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action filed pursuant to 42 U.S.C. § 1983. On December 23, 2021, Defendant C. 18 Rasey moved for partial summary judgment. (ECF No. 34-2). Despite this Court sua sponte 19 extending the time for Plaintiff to respond after he timely failed to do so, Plaintiff has not filed 20 any response to the motion for summary judgment. (ECF No. 36). Moreover, recent mail has been 21 returned to the Court as undeliverable, evidently because Plaintiff has failed to keep the Court 22 updated as to his current address despite the Court’s February 19, 2021 order requiring him to do 23 so. (ECF No. 3, p. 5; 11/29/21 docket entry; 2/7/22 docket entry); see Local Rule 182(f). Because 24 Plaintiff has failed to prosecute this case and comply with Court orders, the Court recommends 25 dismissal of this case. 26 I. BACKGROUND 27 Plaintiff filed this action on February 18, 2021, with this case proceeding on Plaintiff’s 28 Eighth Amendment excessive force and First Amendment retaliation claims against Defendant 1 Casey. (ECF No. 8). Generally, Plaintiff’s claims concern an allegation that Rasey struck Plaintiff 2 in his stomach and removed or terminated Plaintiff from his assigned job in the kitchen. 3 On November 29, 2021, the Clerk noted on the record that the Court’s November 17, 4 2021, minute order regarding a settlement conference had been returned as “[r]efused” after it 5 was mailed to Plaintiff. (See 11/29/21 docket entry; ECF No. 33). 6 On December 23, 2021, Defendant C. Rasey moved for partial summary judgment 7 respecting Plaintiff’s claim that Defendant removed or terminated Plaintiff from his kitchen job. 8 (ECF No. 34-2). Under Local Rule 230(l), Plaintiff’s response was due within twenty-one days 9 after Defendant served him with a copy of the motion. After Plaintiff failed to timely file an 10 opposition to the motion, the Court sua sponte extended the time for him to do so on January 24, 11 2022, giving him until February 18, 2022, to file an opposition or statement of non-opposition. 12 (ECF No. 36). The Court warned Plaintiff that, should he file nothing, it may recommend that this 13 case be dismissed for failure to prosecute and failure to comply with the Court orders. To date, 14 Plaintiff has not done so and his deadline has expired. 15 On February 7, 2022, the Clerk noted on the record that the January 7, 2022 order 16 regarding reassignment of this action had been returned as “[n]ot [d]eliverable as [a]ddressed, 17 [u]nable to [f]orward.” (See 2/7/22 docket entry; ECF No. 35). To date, Plaintiff has provided no 18 updated mailing address. 19 II. ANALYSIS 20 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 21 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 22 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 23 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 24 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 25 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 26 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 27 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 28 first factor weighs in favor of dismissal. 1 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 2 determine whether the delay in a particular case interferes with docket management and the 3 public interest.” Id. Here, Plaintiff’s failure to file a response to the motion for summary as 4 required by the Court’s order, update his address as required by the Court’s order, and otherwise 5 prosecute this action is delaying the case. Such failure to respond to the motion for summary 6 judgment, or even request an extension of time to do so, despite being given a sua sponte 7 extension, indicates that Plaintiff has no intention of pursuing his case. Notably, Plaintiff has not 8 filed anything in this case since his July 21, 2021 motion to appoint counsel. (ECF No. 29). 9 Allowing this case to proceed further, without any indication that Plaintiff wishes to prosecute 10 this action, would waste judicial resources. Hall v. San Joaquin County Jail, No. 2:13-cv-0324 11 AC P, 2018 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“Yet despite the considerable leeway 12 plaintiff has been granted in prosecuting this case because of his pro se status, he has failed to 13 respond to the motion [for summary judgment] as directed. The court will not continue to drag 14 out these proceedings when it appears that plaintiff has no intention of diligently pursuing this 15 case.”). Therefore, the second factor weighs in favor of dismissal. 16 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 17 and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991). 18 However, “delay inherently increases the risk that witnesses’ memories will fade and evidence 19 will become stale,” id. at 643, and it is Plaintiff’s failure to prosecute this case and comply with 20 the Court’s orders that is causing delay and preventing this case from progressing. Therefore, the 21 third factor weighs in favor of dismissal. 22 As for the availability of lesser sanctions, given that Plaintiff has chosen not to prosecute 23 this action and fails to comply with the Court’s orders, despite being warned of possible 24 dismissal, there is little available to the Court which would constitute a satisfactory lesser 25 sanction while protecting the Court from further unnecessary expenditure of its scarce resources. 26 Monetary sanctions are of little use, considering Plaintiff’s in forma pauperis status. And given 27 the stage of these proceedings, the preclusion of evidence or witnesses is not available. 28 Additionally, because the dismissal being considered in this case is without prejudice, the Court is 1 | stopping short of using the harshest possible sanction of dismissal with prejudice. Lastly, the 2 | Court notes that the motion for summary judgment requests only a partial dismissal of Plaintiffs 3 | claims. (ECF No. 35-1, p. 2). This request further justifies a dismissal without prejudice in this 4 | case. 5 Finally, because public policy favors disposition on the merits, this factor weighs against 6 | dismissal. Pagtalunan, 291 F.3d at 643. I. CONCLUSION AND RECOMMENDATIONS 8 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 9 | Accordingly, the Court HEREBY RECOMMENDS that: 10 1. This case be dismissed, without prejudice, because of Plaintiff's failure to 11 || prosecute and comply with the Court’s orders; and 12 2. The Clerk of Court be directed to close this case. 13 These findings and recommendations are submitted to the United States district judge 14 | assigned to the case, pursuant to the provisions of Title 28 U.S.C.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DAVID WILLIAMS, Case No. 1:21-cv-00203-JLT-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 11 v. DISMISSED, WITHOUT PREJUDICE, BECAUSE OF PLAINTIFF’S FAILURE TO 12 C. RASEY, PROSECUTE AND COMPLY WITH COURT ORDERS 13 Defendant. (ECF Nos. 3, 34, 36) 14
15 16 Plaintiff David Williams is a state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action filed pursuant to 42 U.S.C. § 1983. On December 23, 2021, Defendant C. 18 Rasey moved for partial summary judgment. (ECF No. 34-2). Despite this Court sua sponte 19 extending the time for Plaintiff to respond after he timely failed to do so, Plaintiff has not filed 20 any response to the motion for summary judgment. (ECF No. 36). Moreover, recent mail has been 21 returned to the Court as undeliverable, evidently because Plaintiff has failed to keep the Court 22 updated as to his current address despite the Court’s February 19, 2021 order requiring him to do 23 so. (ECF No. 3, p. 5; 11/29/21 docket entry; 2/7/22 docket entry); see Local Rule 182(f). Because 24 Plaintiff has failed to prosecute this case and comply with Court orders, the Court recommends 25 dismissal of this case. 26 I. BACKGROUND 27 Plaintiff filed this action on February 18, 2021, with this case proceeding on Plaintiff’s 28 Eighth Amendment excessive force and First Amendment retaliation claims against Defendant 1 Casey. (ECF No. 8). Generally, Plaintiff’s claims concern an allegation that Rasey struck Plaintiff 2 in his stomach and removed or terminated Plaintiff from his assigned job in the kitchen. 3 On November 29, 2021, the Clerk noted on the record that the Court’s November 17, 4 2021, minute order regarding a settlement conference had been returned as “[r]efused” after it 5 was mailed to Plaintiff. (See 11/29/21 docket entry; ECF No. 33). 6 On December 23, 2021, Defendant C. Rasey moved for partial summary judgment 7 respecting Plaintiff’s claim that Defendant removed or terminated Plaintiff from his kitchen job. 8 (ECF No. 34-2). Under Local Rule 230(l), Plaintiff’s response was due within twenty-one days 9 after Defendant served him with a copy of the motion. After Plaintiff failed to timely file an 10 opposition to the motion, the Court sua sponte extended the time for him to do so on January 24, 11 2022, giving him until February 18, 2022, to file an opposition or statement of non-opposition. 12 (ECF No. 36). The Court warned Plaintiff that, should he file nothing, it may recommend that this 13 case be dismissed for failure to prosecute and failure to comply with the Court orders. To date, 14 Plaintiff has not done so and his deadline has expired. 15 On February 7, 2022, the Clerk noted on the record that the January 7, 2022 order 16 regarding reassignment of this action had been returned as “[n]ot [d]eliverable as [a]ddressed, 17 [u]nable to [f]orward.” (See 2/7/22 docket entry; ECF No. 35). To date, Plaintiff has provided no 18 updated mailing address. 19 II. ANALYSIS 20 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 21 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 22 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 23 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 24 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 25 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 26 “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 27 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 28 first factor weighs in favor of dismissal. 1 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 2 determine whether the delay in a particular case interferes with docket management and the 3 public interest.” Id. Here, Plaintiff’s failure to file a response to the motion for summary as 4 required by the Court’s order, update his address as required by the Court’s order, and otherwise 5 prosecute this action is delaying the case. Such failure to respond to the motion for summary 6 judgment, or even request an extension of time to do so, despite being given a sua sponte 7 extension, indicates that Plaintiff has no intention of pursuing his case. Notably, Plaintiff has not 8 filed anything in this case since his July 21, 2021 motion to appoint counsel. (ECF No. 29). 9 Allowing this case to proceed further, without any indication that Plaintiff wishes to prosecute 10 this action, would waste judicial resources. Hall v. San Joaquin County Jail, No. 2:13-cv-0324 11 AC P, 2018 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“Yet despite the considerable leeway 12 plaintiff has been granted in prosecuting this case because of his pro se status, he has failed to 13 respond to the motion [for summary judgment] as directed. The court will not continue to drag 14 out these proceedings when it appears that plaintiff has no intention of diligently pursuing this 15 case.”). Therefore, the second factor weighs in favor of dismissal. 16 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 17 and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991). 18 However, “delay inherently increases the risk that witnesses’ memories will fade and evidence 19 will become stale,” id. at 643, and it is Plaintiff’s failure to prosecute this case and comply with 20 the Court’s orders that is causing delay and preventing this case from progressing. Therefore, the 21 third factor weighs in favor of dismissal. 22 As for the availability of lesser sanctions, given that Plaintiff has chosen not to prosecute 23 this action and fails to comply with the Court’s orders, despite being warned of possible 24 dismissal, there is little available to the Court which would constitute a satisfactory lesser 25 sanction while protecting the Court from further unnecessary expenditure of its scarce resources. 26 Monetary sanctions are of little use, considering Plaintiff’s in forma pauperis status. And given 27 the stage of these proceedings, the preclusion of evidence or witnesses is not available. 28 Additionally, because the dismissal being considered in this case is without prejudice, the Court is 1 | stopping short of using the harshest possible sanction of dismissal with prejudice. Lastly, the 2 | Court notes that the motion for summary judgment requests only a partial dismissal of Plaintiffs 3 | claims. (ECF No. 35-1, p. 2). This request further justifies a dismissal without prejudice in this 4 | case. 5 Finally, because public policy favors disposition on the merits, this factor weighs against 6 | dismissal. Pagtalunan, 291 F.3d at 643. I. CONCLUSION AND RECOMMENDATIONS 8 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 9 | Accordingly, the Court HEREBY RECOMMENDS that: 10 1. This case be dismissed, without prejudice, because of Plaintiff's failure to 11 || prosecute and comply with the Court’s orders; and 12 2. The Clerk of Court be directed to close this case. 13 These findings and recommendations are submitted to the United States district judge 14 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 15 | (14) days after being served with these findings and recommendations, any party may file written 16 | objections with the court. Such a document should be captioned “Objections to Magistrate 17 || Judge’s Findings and Recommendations.” 18 Any reply to the objections shall be served and filed within fourteen (14) days after 19 | service of the objections. 20 IT IS SO ORDERED. 22 | Dated: _ February 23, 2022 [see hey — UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28