Romero v. Tuolumne County Jail et al

Filing 9

FINDINGS and RECOMMENDATIONS Recommending That the Case be Dismissed, With Prejudice, for Failure to State a Claim and Failure to Comply With a Court Order; ORDER DIRECTING Clerk to Send a Copy of Order to Plaintiff at Additional Address, signed by Magistrate Judge Erica P. Grosjean on 2/28/17. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEIOKO D. ROMERO,
Plaintiff,

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v.

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TUOLUMNE COUNTY JAIL and
MCCAIG,

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Defendants.

1:15-cv-01590-AWI-EPG (PC)
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THE CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM AND
FAILURE TO COMPLY WITH A COURT
ORDER
(ECF NOS. 1 & 7)
ORDER DIRECTING CLERK TO SEND A
COPY OF ORDER TO PLAINTIFF AT
ADDITIONAL ADDRESS

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OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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Leioko Romero (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing

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this action on October 19, 2015. (ECF No. 1). On November 30, 2016, the Court screened

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Plaintiff’s Complaint and found that it failed to state a claim. (ECF No. 7). The Court gave

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Plaintiff thirty days from the date of service of the order to file an amended complaint or to

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notify the Court that she wishes to stand on her Complaint, subject to findings and

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recommendations to the district judge consistent with the screening order. (Id.). The Court

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also warned Plaintiff that failure to file an amended complaint or to notify the Court that she

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wishes to stand on the Complaint would result in the dismissal of her case. (Id. at pgs. 9-10).

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The time period expired, and Plaintiff did not file an amended complaint or notify the

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Court that she wishes to stand on her Complaint. Additionally, Plaintiff failed to keep the

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Court and opposing parties informed of her current address, as required by Local Rule 183(b)

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and the First Informational Order in Prisoner/Civil Detainee Civil Rights Case (ECF No. 3, p.

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5).
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Accordingly, the Court will recommend that Plaintiff’s case be dismissed for failure to
state a claim and failure to comply with a court order.

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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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“‘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)). This case has

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been pending for over a year and four months, and it has been over two months since Plaintiff

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was ordered to file an amended complaint or notify the Court that she wishes to stand on her

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Complaint. Accordingly, this factor weighs in favor of dismissal.

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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 v. California

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Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). However, Adelay inherently increases the risk

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that witnesses= memories will fade and evidence will become stale,@ id. at 643, and it is

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Plaintiff's failure to file an amended complaint or to notify the Court that she wishes to stand on

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her Complaint that is causing delay. The Court found that Plaintiff’s Complaint failed to state a

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claim over two months ago. The case is now stalled until Plaintiff files an amended complaint

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or notifies the Court that she wishes to stand on her Complaint. Therefore, the third factor

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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, the Court has already found that Plaintiff’s complaint failed to state a claim.
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Finally, because public policy favors disposition on the merits, this factor weighs
against dismissal. Id. at 643.
Accordingly, the Court HEREBY RECOMMENDS that:

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1. Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e)(2)(B)(ii) this action be

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DISMISSED based on Plaintiff=s failure to state a claim upon which relief may

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be granted under § 1983, as well as Plaintiff’s failure to comply with a Court

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order;
2. This dismissal be subject to the “three-strikes” provision set forth in 28 U.S.C.

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§ 1915(g). Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015); and

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3. The Clerk of Court be directed to close this case.

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These findings and recommendations are submitted to the district judge assigned to the

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case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty days after being

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served with these findings and recommendations, Plaintiff may file written objections with the

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court. Such a document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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Additionally, IT IS ORDERED that, in addition to the address listed for Plaintiff on the

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docket, the Clerk of Court is directed to send a copy of this order to: Leioko D. Romero,

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WF5997, Central California Women's Facility, P.O. Box 1508, Chowchilla, CA 93610.

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IT IS SO ORDERED.
Dated:

February 28, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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