(PC)Milliken v. Alfaro

Opinion

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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JAMES M. MILLIKEN, 1:20-cv-00963-DAD-GSA-PC 12 FINDINGS AND RECOMMENDATIONS 13 Plaintiff, TO DISMISS CASE FOR FAILURE TO OBEY COURT ORDER 14 vs. (ECF No. 19.)

15 S. ALFARO, et al., OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 Defendants.

18 19 I. FINDINGS 20 James M. Milliken (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 21 action pursuant to 42 U.S.C. § 1983. On July 6, 2020, Plaintiff filed the Complaint commencing 22 this action. (ECF No. 1.) 23 On February 28, 2022, the Court screened the Complaint and issued an order dismissing 24 it for failure to state a claim, with leave to amend within thirty days. (ECF No. 19.) The thirty 25 day time period has now expired, and Plaintiff has not filed an amended complaint or otherwise 26 responded to the Court's order. 27 In determining whether to dismiss this action for failure to comply with the directives set 28 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 1 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 2 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 3 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 4 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 5 “The public’s interest in expeditious resolution of litigation always favors dismissal,” id. 6 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action 7 has been pending since July 6, 2020. Plaintiff’s failure to respond to the Court’s order may reflect 8 Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot continue to 9 expend its scarce resources assisting a litigant who will not help himself by litigating his lawsuit. 10 Thus, both the first and second factors weigh in favor of dismissal. 11 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 12 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 13 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 14 is Plaintiff’s failure to file an amended complaint that is causing delay. Therefore, the third factor 15 weighs in favor of dismissal. 16 As for the availability of lesser sanctions, at this stage in the proceedings there is little 17 available to the Court which would constitute a satisfactory lesser sanction while protecting the 18 Court from further unnecessary expenditure of its scarce resources. Plaintiff is a prisoner 19 proceeding pro se with this action, making monetary sanctions of little use, and given the early 20 stage of these proceedings, the preclusion of evidence or witnesses is not available. However, 21 inasmuch as the dismissal being considered in this case is without prejudice, the Court is stopping 22 short of issuing the harshest possible sanction of dismissal with prejudice. 23 Finally, because public policy favors disposition on the merits, this factor will always 24 weigh against dismissal. Id. at 643. 25 II. RECOMMENDATIONS AND CONCLUSION 26 Accordingly, the Court HEREBY RECOMMENDS that: 27 1. This action be dismissed, without prejudice, based on Plaintiff’s failure to obey 28 the Court’s order of February 28, 2002; and 1 2. The Clerk be directed to close this case. 2 These findings and recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 4 (14) days from the date of service of these findings and recommendations, Plaintiff may file 5 written objections with the court. Such a document should be captioned “Objections to 6 Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file 7 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 8 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 9 Cir. 1991)). 10 IT IS SO ORDERED. 11

12 Dated: April 29, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13

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