Berry v. Harrington et al

Filing 28

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Failure to State a Claim Upon Which Relief Can be Granted and for Failure to Comply With a Court Order re 26 First Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Erica P. Grosjean on 1/11/2017. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SPENCER E. BERRY,

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Plaintiff,

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vs.

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J. LEWIS, et al.,

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Defendants.

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1:15-cv-01134-LJO-EPG-PC
FINDINGS AND RECOMMENDATIONS
THAT THIS CASE BE DISMISSED FOR
FAILURE TO STATE A CLAIM AND
FAILURE TO COMPLY WITH A COURT
ORDER
(ECF Nos. 26, 27)
FOURTEEN DAY DEADLINE

Plaintiff, Spencer E. Berry (“Plaintiff”), is a former state prisoner proceeding pro se and
in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the
Complaint commencing this action on July 13, 2015. (ECF No. 1.) Plaintiff filed a First
Amended Complaint (“FAC”) on May 23, 2016. (ECF No. 26.)
The Court screened the FAC pursuant to its authority in 28 U.S.C. § 1915A on
November 7, 2016. (ECF No. 27.) The screening order found that the FAC failed to state a
claim upon which relief could be granted. (Id.) Plaintiff was specifically directed to take action
within 30 days from the screening order to either: 1) file a Second Amended Complaint; or 2)
“[n]otify the Court in writing that he does not agree to file a Second Amended Complaint, in
which case this Court will issue findings and recommendations to the district judge consistent
with this order.” (Id. at 11.)

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Plaintiff failed to file a Second Amended Complaint or notify the Court of his election
to stand on the FAC within the 30 day period.

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“In determining whether to dismiss a[n] [action] for failure to prosecute or failure to

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comply with a court order, the Court must weigh the following factors: (1) the public=s interest

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in expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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A>The public=s interest in expeditious resolution of litigation always favors dismissal.=@

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Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). While it has

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only been approximately sixty days since Plaintiff was ordered to file a Second Amended

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Complaint, the case has been pending since July of 2015, and there is no operative complaint in

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this case.

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Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.@ Pagtalunan, 291 F.3d at 642 (citing Yourish at 991).

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However, Adelay inherently increases the risk that witnesses= memories will fade and evidence

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will become stale,@ id., and it is Plaintiff's failure to file an amended complaint that is causing

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delay. The case is over a year old and there is no operative complaint. The case is now stalled.

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Therefore, the third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of

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little use, considering Plaintiff’s incarceration and in forma pauperis status, and given the stage

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of these proceedings, the preclusion of evidence or witnesses is not available. While dismissal

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is a harsh sanction, Plaintiff’s complaint has already been dismissed (with leave to amend) for

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failure to state a claim and there is no operative complaint.

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Finally, because public policy favors disposition on the merits, this factor will always
weigh against dismissal. Id. at 643.
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Accordingly, the Court will recommend dismissal of this case for failure to state a claim
upon which relief can be granted1 and for failure to comply with a Court order.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen

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(14) days after being served with these findings and recommendations, Plaintiff may file

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written objections with the Court. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

January 11, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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The Court hereby incorporates by reference its 28 U.S.C. § 1915A screening analysis concerning the
FAC in the order dated November 7, 2016. (ECF No. 27.)
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