(PC)Pizarro v. FCI Mendota

Opinion

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

10 D’JUAN MANUEL PIZARRO, Case No. 1:24-cv-00749-KES-EPG (PC) 11 Plaintiff, 12 FINDINGS AND RECOMMENDATIONS v. TO DISMISS THIS ACTION WITHOUT 13 PREJUDICE FOR FAILURE TO FCI MENDOTA, et al., PROSECUTE AND FAILURE TO 14 COMPLY WITH COURT’S ORDERS Defendants. 15 OBJECTIONS, IF ANY, 16 DUE WITHIN 30 DAYS 17 18 Plaintiff D’Juan Manuel Pizarro is an inmate in custody of Bureau of Prisons and 19 proceeds pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Mail sent to 20 Plaintiff by the Court was returned as undeliverable and Plaintiff failed to update his address. 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 complaint commencing this action on June 26, 2024. (ECF No. 1). The 25 Court issued and then discharged an Order to Show Cause why the complaint should not be 26 dismissed for failure to show exhaust. (ECF Nos. 11, 13). The Order discharging the OSC was 27 returned to Court on December 16, 2024, marked “undeliverable” and “unable to forward.” 28 (See docket). Plaintiff has not updated his mailing address or otherwise communicated with the 1 Court. Per Court’s First Informational Order (ECF No. 2 at 5) and Local Rule 183 in effect at 2 the time,1 the deadline to do so has also passed. 4 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure 5 to comply with court orders and to prosecute. In determining whether to dismiss an action 6 under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court 7 must weigh the following factors: (1) the public’s interest in expeditious resolution of 8 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 9 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 10 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th 11 Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 13 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 14 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 15 dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 16 (internal quotation marks omitted). 17 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in 18 the best position to determine whether the delay in a particular case interferes with docket 19 management and the public interest.” Id. Here, Plaintiff has failed to update his mailing address 20 or otherwise communicate with the Court. Allowing this case to proceed further without any 21 indication that Plaintiff intends to prosecute his case is a waste of judicial resources. See Hall v. 22 San Joaquin County Jail, No. 2:13-cv-0324 AC P, 2018 WL 4352909, at *2 (E.D. Cal. Sept. 23 12, 2018) (“The court will not continue to drag out these proceedings when it appears that 24 plaintiffs have no intention of diligently pursuing this case.”). Therefore, the second factor 25 weighs in favor of dismissal. 26 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 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 2 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 3 F.3d at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that 4 witnesses’ memories will fade and evidence will become stale,” id. at 643, and it is Plaintiff’s 5 failure to comply with a court order that is causing delay and preventing this case from 6 progressing. Therefore, the third factor weighs in favor of dismissal. 7 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in 8 the proceedings there is little available to the Court which would constitute a satisfactory lesser 9 sanction while protecting the Court from further unnecessary expenditure of its scarce 10 resources. Monetary sanctions are of little use, considering Plaintiff’s incarceration. And, given 11 the stage of these proceedings, the preclusion of evidence or witnesses is not available. 12 Moreover, dismissal without prejudice is the lesser sanction available to the Court. Under 13 Federal Rule of Civil Procedure 41(b), a court may dismiss an action with prejudice for failure 14 to comply with court orders and to prosecute. Fed. R. Civ. P. (41)(b); see also Link v. Wabash 15 R. Co., 370 U.S. 626, 630–31 (1962) (holding that Rule 41(b) allows sua sponte dismissal by 16 the Court because “[t]he authority of a court to dismiss sua sponte for lack of prosecution has 17 generally been considered an ‘inherent power,’ governed not by rule or statute but by the 18 control necessarily vested in courts to manage their own affairs so as to achieve the orderly and 19 expeditious disposition of cases.”) Therefore, the fourth factor also weighs in favor of 20 dismissal. 21 Finally, because public policy favors disposition on the merits, this factor weighs 22 against dismissal. Pagtalunan, 291 F.3d at 643. 24 After weighing the factors, the Court finds that dismissal without prejudice is 25 appropriate. 26 Accordingly, IT IS RECOMMENDED that: 27 1. This action be dismissed without prejudice under Federal Rule of Civil 28 Procedure 41(b) for failure to prosecute and failure to follow Court’s orders; and 1 2. 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.” Any objections shall be limited to no more than 15 7 || pages including exhibits. 8 Plaintiff is advised that failure to file objections within the specified time may result in 9 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 10 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 IT IS SO ORDERED. Dated: _March 7, 2025 [sf ey — 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28