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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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 6 LEIOKO D. ROMERO, Plaintiff, 7 v. 8 9 TUOLUMNE COUNTY JAIL and MCCAIG, 10 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 11 12 OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 13 14 15 Leioko Romero (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in 16 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing 17 this action on October 19, 2015. (ECF No. 1). On November 30, 2016, the Court screened 18 Plaintiff’s Complaint and found that it failed to state a claim. (ECF No. 7). The Court gave 19 Plaintiff thirty days from the date of service of the order to file an amended complaint or to 20 notify the Court that she wishes to stand on her Complaint, subject to findings and 21 recommendations to the district judge consistent with the screening order. (Id.). The Court 22 also warned Plaintiff that failure to file an amended complaint or to notify the Court that she 23 wishes to stand on the Complaint would result in the dismissal of her case. (Id. at pgs. 9-10). 24 The time period expired, and Plaintiff did not file an amended complaint or notify the 25 Court that she wishes to stand on her Complaint. Additionally, Plaintiff failed to keep the 26 Court and opposing parties informed of her current address, as required by Local Rule 183(b) 27 and the First Informational Order in Prisoner/Civil Detainee Civil Rights Case (ECF No. 3, p. 28 5). 1 1 2 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. 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 “‘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)). This case has 11 been pending for over a year and four months, and it has been over two months since Plaintiff 12 was ordered to file an amended complaint or notify the Court that she wishes to stand on her 13 Complaint. Accordingly, this factor weighs in favor of dismissal. 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 v. California 16 Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). However, Adelay inherently increases the risk 17 that witnesses= memories will fade and evidence will become stale,@ id. at 643, and it is 18 Plaintiff's failure to file an amended complaint or to notify the Court that she wishes to stand on 19 her Complaint that is causing delay. The Court found that Plaintiff’s Complaint failed to state a 20 claim over two months ago. The case is now stalled until Plaintiff files an amended complaint 21 or notifies the Court that she wishes to stand on her Complaint. Therefore, the third factor 22 weighs in favor of dismissal. 23 As for the availability of lesser sanctions, at this stage in the proceedings there is little 24 available to the Court which would constitute a satisfactory lesser sanction while protecting the 25 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of 26 little use, considering Plaintiff’s incarceration and in forma pauperis status, and given the stage 27 of these proceedings, the preclusion of evidence or witnesses is not available. While dismissal 28 is a harsh sanction, the Court has already found that Plaintiff’s complaint failed to state a claim. 2 1 2 3 Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id. at 643. Accordingly, the Court HEREBY RECOMMENDS that: 4 1. Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e)(2)(B)(ii) this action be 5 DISMISSED based on Plaintiff=s failure to state a claim upon which relief may 6 be granted under § 1983, as well as Plaintiff’s failure to comply with a Court 7 order; 2. This dismissal be subject to the “three-strikes” provision set forth in 28 U.S.C. 8 9 § 1915(g). Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015); and 10 3. The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the district judge assigned to the 12 case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty days after being 13 served with these findings and recommendations, Plaintiff may file written objections with the 14 court. Such a document should be captioned "Objections to Magistrate Judge's Findings and 15 Recommendations." Plaintiff is advised that failure to file objections within the specified time 16 may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th 17 Cir. 1991). 18 Additionally, IT IS ORDERED that, in addition to the address listed for Plaintiff on the 19 docket, the Clerk of Court is directed to send a copy of this order to: Leioko D. Romero, 20 WF5997, Central California Women's Facility, P.O. Box 1508, Chowchilla, CA 93610. 21 22 23 IT IS SO ORDERED. Dated: February 28, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

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