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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SPENCER E. BERRY, 12 Plaintiff, 13 vs. 14 J. LEWIS, et al., 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 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.) 28 1 1 2 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. 3 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 4 comply with a court order, the Court must weigh the following factors: (1) the public=s interest 5 in expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 6 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 7 public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d 8 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 9 A>The public=s interest in expeditious resolution of litigation always favors dismissal.=@ 10 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). While it has 11 only been approximately sixty days since Plaintiff was ordered to file a Second Amended 12 Complaint, the case has been pending since July of 2015, and there is no operative complaint in 13 this case. 14 Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in 15 and of itself to warrant dismissal.@ Pagtalunan, 291 F.3d at 642 (citing Yourish at 991). 16 However, Adelay inherently increases the risk that witnesses= memories will fade and evidence 17 will become stale,@ id., and it is Plaintiff's failure to file an amended complaint that is causing 18 delay. The case is over a year old and there is no operative complaint. The case is now stalled. 19 Therefore, the third factor weighs in favor of dismissal. 20 As for the availability of lesser sanctions, at this stage in the proceedings there is little 21 available to the Court which would constitute a satisfactory lesser sanction while protecting the 22 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of 23 little use, considering Plaintiff’s incarceration and in forma pauperis status, and given the stage 24 of these proceedings, the preclusion of evidence or witnesses is not available. While dismissal 25 is a harsh sanction, Plaintiff’s complaint has already been dismissed (with leave to amend) for 26 failure to state a claim and there is no operative complaint. 27 28 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 2 1 2 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. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen 5 (14) days after being served with these findings and recommendations, Plaintiff may file 6 written objections with the Court. Such a document should be captioned “Objections to 7 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 8 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 9 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 10 (9th Cir. 1991)). 11 12 13 IT IS SO ORDERED. Dated: January 11, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 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.) 3

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