Thomas Butler v. Perez et al

Filing 9

FINDINGS and RECOMMENDATIONS recommending that pursuant to 28:1915A and 28:1915(e)(2)(B)(ii) this aciton be Dismissed based on Plaintiff's failure to state a claim upon which relief may be granted under 1983, as well as Plaintiff's failure to comply with a Court order; this dismissal be subject to the "three strikes" provision set forth in 28:1915(g); Clerk of Court be Directed to Close this Case re 1 Prisoner Civil Rights Complaint filed by Thomas Butler ; referred to Judge Ishii,signed by Magistrate Judge Erica P. Grosjean on 02/14/17. Objections to F&R (30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS BUTLER,
Plaintiff,

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v.
PEREZ, et al.,
Defendants.

1:16-cv-00820-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 & 8)

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OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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Thomas Butler (“Plaintiff”) is proceeding pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this
action on June 13, 2016. (ECF No. 1). On December 19, 2016, the Court screened Plaintiff’s
Complaint and found that it failed to state a claim. (ECF No. 8). The Court gave Plaintiff 30
days from the date of service of the order to file an amended complaint or notify the Court that
he wishes to stand on his Complaint, subject to findings and recommendations to the district
judge consistent with the screening order. (Id.). The Court also warned Plaintiff that failure to
file an amended complaint or notify the Court that he wishes to stand on the Complaint would
result in the Court issuing findings and recommendations to the assigned district court judge,
recommending dismissal of the case for failure to state a claim and failure to comply with a
court order. (Id. at p. 8).
The time period expired, and Plaintiff did not file an amended complaint or notify the
Court that he wishes to stand on his Complaint. 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)). While this

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case has only been pending for approximately eight months, it has been almost two months

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since Plaintiff was ordered to file an amended complaint or notify the Court that he wishes to

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stand on his 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 notify the Court that he wishes to stand on his

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

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claim almost two months ago.

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complaint or notifies the Court that he wishes to stand on his Complaint. Therefore, the third

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factor weighs in favor of dismissal.

The case is now stalled until Plaintiff files an amended

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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

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against dismissal. Id. at 643.
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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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IT IS SO ORDERED.
Dated:

February 14, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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