Muhammad v. Moreno
Filing
25
FINDINGS and RECOMMENDATIONS, Recommending That This Case be Dismissed Because of Plaintiff's Failure to Comply With Court Orders and Failure to Prosecute 19 & 20 , signed by Magistrate Judge Erica P. Grosjean on 9/25/2018: 21-Day Deadline. (Hellings, J)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10
11
MAURICE MUHAMMAD,
Plaintiff,
12
13
14
15
v.
MORENO, et al.,
Defendants.
OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS
17
19
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED BECAUSE OF PLAINTIFF’S
FAILURE TO COMPLY WITH COURT
ORDERS AND FAILURE TO
PROSECUTE
(ECF NOS. 19 & 20)
16
18
Case No. 1:16-cv-00577-LJO-EPG (PC)
Maurice Muhammad (“Plaintiff”) is a former state prisoner proceeding pro se and in
forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.
20
On May 4, 2018, the Court issued an order setting an initial scheduling conference,
21
requiring the parties to exchange initial disclosures, and requiring the parties to file scheduling
22
conference statements. (ECF No. 19).
23
The deadline for exchanging initial disclosures passed, and according to Defendants,
24
Plaintiff failed to provide Defendants with his initial disclosures (ECF No. 22, p. 2).
25
Additionally, the deadline for filing scheduling conference statements passed, and Plaintiff
26
failed to file his scheduling conference statement.
27
28
Accordingly, the Court vacated the initial scheduling conference, and ordered that:
[w]ithin twenty-eight (28) days from the date of service of this
1
order, Plaintiff shall serve Defendants with his initial disclosures
and file a scheduling conference statement. Plaintiff’s scheduling
conference statement should confirm that he has served
Defendants with his initial disclosures. The Court will reset the
initial scheduling conference if it receives a scheduling
conference statement from Plaintiff that complies with this
Court’s orders.
1
2
3
4
5
(ECF No. 23, p. 2). Plaintiff was warned that “[f]ailure to comply with this order may result in
6
the dismissal of this case with prejudice for failure to prosecute and failure to comply with
7
court orders.” (Id.). The twenty-eight-day period has passed, and despite the Court’s warning,
8
Plaintiff did not file a scheduling conference statement or confirm that he served Defendants
9
with a copy of his initial disclosures.1
10
Accordingly, the Court will recommend that this case be dismissed because of
11
12
Plaintiff’s failure to comply with court orders and failure to prosecute.
“In determining whether to dismiss a[n] [action] for failure to prosecute or failure to
13
comply with a court order, the Court must weigh the following factors: (1) the public=s interest
14
in expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of
15
prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the
16
public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d
17
639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
18
“‘The public=s interest in expeditious resolution of litigation always favors dismissal.’”
19
Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly,
20
this factor weighs in favor of dismissal.
21
As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to
22
determine whether the delay in a particular case interferes with docket management and the
23
public interest…. It is incumbent upon the Court to manage its docket without being subject to
24
25
routine noncompliance of litigants....” Pagtalunan, 291 at 639. Here, Plaintiff’s continued noncompliance is consuming the Court’s limited time. As described above, the Court vacated the
26
27
1
28
This is not the first time that Plaintiff has failed to prosecute a case and comply with Court orders. One
of Plaintiff’s prior cases, Muhammad v. Komin, E.D. CA, 1:15-cv-01373, was recently dismissed for failure to
prosecute and failure to comply with court orders. Muhammad v. Komin, ECF No. 40.
2
1
initial scheduling conference because of Plaintiff’s lack of compliance with the Court’s order
2
setting the conference. Plaintiff was given a second opportunity to comply, but Plaintiff again
3
failed to file a scheduling conference statement and failed to confirm that he served Defendants
4
with a copy of his initial disclosures.
5
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in
6
and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However,
7
Adelay inherently increases the risk that witnesses= memories will fade and evidence will
8
become stale,@ id. at 643, and, as described above, it is Plaintiff’s failure to comply with court
9
orders and prosecute this case that is causing delays. Therefore, the third factor weighs in favor
10
11
of dismissal.
As for the availability of lesser sanctions, at this stage in the proceedings there is little
12
available to the Court which would constitute a satisfactory lesser sanction while protecting the
13
Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of
14
little use, considering Plaintiff’s in forma pauperis status, and given the stage of these
15
proceedings, the preclusion of evidence or witnesses is not available.
16
17
18
19
20
21
22
23
Finally, because public policy favors disposition on the merits, this factor weighs
against dismissal. Id.
After weighing the factors, the Court finds that dismissal is appropriate. Accordingly,
the Court HEREBY RECOMMENDS that:
1. This action be dismissed because of Plaintiff's failure to prosecute this case and
to comply with court orders; and
2. The Clerk of Court be directed to close this case.
These findings and recommendations are submitted to the United States district judge
24
assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty-
25
one (21) days after being served with these findings and recommendations, any party may file
26
written objections with the court. Such a document should be captioned "Objections to
27
Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be
28
served and filed within seven (7) days after service of the objections. The parties are advised
3
1
that failure to file objections within the specified time may result in the waiver of rights on
2
appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,
3
923 F.2d 1391, 1394 (9th Cir. 1991)).
4
5
6
IT IS SO ORDERED.
Dated:
September 25, 2018
/s/
UNITED STATES MAGISTRATE JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?