De Luca v. Moreno

Filing 13

FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed, without Prejudice, for Plaintiff's Failure to Comply with a Court Order and Failure to Prosecute signed by Magistrate Judge Erica P. Grosjean on 08/14/2017. Referred to Judge Drozd. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DINO DE LUCA,
Plaintiff,

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v.
FRANCISCO MORENO,
Defendant.

Case No. 1:16-cv-01887-DAD-EPG (PC)
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITHOUT PREJUDICE,
FOR PLAINTIFF’S FAILURE TO
COMPLY WITH A COURT ORDER AND
FAILURE TO PROSECUTE
(ECF NOS. 5 & 12)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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At the time Dino De Luca (“Plaintiff”) filed his complaint, he was a person detained by

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the State of California under civil process. He is proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. On December 19, 2016, Plaintiff filed his

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complaint. (ECF No. 1). On January 12, 2017, the Court screened Plaintiff’s complaint and

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found that Plaintiff stated a cognizable claim against Defendant Francisco Moreno for

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excessive force in violation of the Fourteenth Amendment. (ECF No. 5). The Court also found

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service of the complaint appropriate, and sent Plaintiff service documents that Plaintiff was to

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complete and return within thirty days from the date of service of the screening order. (Id.).

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Because a notice the Court sent to Plaintiff on February 17, 2017, was returned as
undeliverable, the Court resent the screening order to Plaintiff on March 1, 2017.

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The time period for Plaintiff to complete and return the service documents expired, and

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Plaintiff did not complete and return the service documents. Additionally, Plaintiff failed to

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keep the Court informed of his current address, as required by Local Rule 183(b) and the First

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Informational Order in Prisoner/Civil Detainee Civil Rights Case (ECF No. 3, p. 5).

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Accordingly, on May 12, 2017, the Court issued findings and recommendations,
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recommending that Plaintiff’s case be dismissed for failure to comply with a court order and

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failure to prosecute. (ECF No. 9). The findings and recommendations served on Plaintiff were

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returned as undeliverable.

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On June 23, 2017, Plaintiff filed a notice of change of address. (ECF No. 11). Because

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Plaintiff provided an updated address, on June 26, 2017, the Court vacated its findings and

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recommendations, directed the Clerk of Court to send Plaintiff a copy of the screening order

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and service documents, and gave Plaintiff thirty days from the date of service of the order to

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complete and return the service documents. (ECF No. 12). Plaintiff was warned that if he

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failed to timely complete and return the service documents, the Court would issue findings and

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recommendations, recommending that this case be dismissed without prejudice for failure to

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prosecute and failure to comply with a Court order. (Id.).

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The time period expired, and Plaintiff has once again failed to complete and return the

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service documents. Accordingly, the Court will once again recommend that Plaintiff’s case be

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dismissed for failure to comply with a court order and failure to prosecute.

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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)). Accordingly,

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this factor weighs in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However,

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Adelay inherently increases the risk that witnesses= memories will fade and evidence will

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become stale,@ id. at 643, and it is Plaintiff's failure to complete and return the service

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documents that is causing delay. It has been over seven months since the Court first directed
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Plaintiff to complete and return the service documents, and the case is stalled until Plaintiff

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completes and returns those documents.

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dismissal.

Therefore, the third factor weighs in favor of

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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. Considering Plaintiff’s

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detention and in forma pauperis status, monetary sanctions are of little use, and given the stage

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of these proceedings, the preclusion of evidence or witnesses is not available. Additionally,

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because the dismissal being considered in this case is without prejudice, the Court is stopping

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short of using the harshest possible sanction of dismissal with prejudice.

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Finally, because public policy favors disposition on the merits, this factor weighs
against dismissal. Id.
After weighing the factors, including the Court’s need to manage its docket, the Court

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finds that dismissal without prejudice is appropriate.

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RECOMMENDS that:

Accordingly, the Court HEREBY

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1. This action be dismissed, without prejudice, based on Plaintiff's failure to

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prosecute this case and failure to comply with the Court’s orders entered on

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January 12, 2017 (ECF No. 5), and June 26, 2017 (ECF No. 12); and

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2. 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

August 14, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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