Stewart v. Christianson et al
Filing
17
FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to State a Claim, Failure to Prosecute, and Failure to Comply with Court Orders, Objections if any, Due Within 14 Days; ORDER to Assign District Judge, signed by Magistrate Judge Jeremy D. Pete rson on 11/23/18. This Case is Assigned to District Judge Dale A. Drozd and Magistrate Judge Jeremy D. Peterson. The New Case No. is: 1:18-cv-0058-DAD-JDP. Referred to Judge Drozd. Objections to F&R due within 14-Days. (Gonzalez, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
GERALD STEWART,
12
13
14
15
16
Plaintiff,
v.
ADAM CHRISTIANSON, et al.,
Defendants.
Case No. 1:18-cv-00058-JDP
FINDINGS AND RECOMMENDATIONS TO
DISMISS CASE FOR FAILURE TO STATE A
CLAIM, FAILURE TO PROSECUTE, AND
FAILURE TO COMPLY WITH COURT
ORDERS
OBJECTIONS, IF ANY, DUE WITHIN 14
DAYS
ORDER TO ASSIGN DISTRICT JUDGE
17
18
Plaintiff Gerald Stewart, is a state prisoner proceeding without counsel in this civil rights
19
action brought under 42 U.S.C. § 1983. On October 3, 2018, the court entered a screening order
20
under 28 U.S.C. § 1915A dismissing plaintiff’s complaint for failure to state a claim upon which
21
relief may be granted. ECF No. 16. Plaintiff was granted leave to file a first amended complaint
22
within 30 days of the screening order. See id. at 6. More than 30 days have now passed, and
23
plaintiff has not filed a first amended complaint or responded to the court’s screening order.
24
Therefore, the court will recommend dismissal for failure to state a claim.
25
Because plaintiff did not comply with a court-ordered deadline, we may also dismiss the
26
case for failure to comply with a court order and failure to prosecute. See Edwards v. Marin
27
Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (when a plaintiff is given an opportunity to
28
amend and does nothing, a case “is properly met with the sanction of a Rule 41(b) dismissal.”).
1
1
“In determining whether to dismiss a[n] [action] for failure to prosecute or failure to comply with
2
a court order, the Court must weigh the following factors: (1) the public=s interest in expeditious
3
resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to
4
defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy
5
favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.
6
2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
7
After weighing the factors, we conclude that dismissal is appropriate. “‘The public’s
8
interest in expeditious resolution of litigation always favors dismissal.’” Id. (quoting Yourish v.
9
California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). As to the court’s need to manage its
10
docket, “[t]he trial judge is in the best position to determine whether the delay in a particular case
11
interferes with docket management and the public interest…. It is incumbent upon the Court to
12
manage its docket without being subject to routine noncompliance of litigants....” Pagtalunan,
13
291 F.3d at 639. As described above, plaintiff was granted leave to amend within 30 days of the
14
court’s screening and provided with legal standards that could assist with the amendment. ECF
15
No. 16. Plaintiff failed to file an amended complaint. The non-compliance is delaying this case
16
and interfering with docket management. Therefore, the first two factors weigh in favor of
17
dismissal.
18
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in
19
and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay
20
inherently increases the risk that witnesses= memories will fade and evidence will become stale,”
21
id. at 643, and as described above, it is plaintiff’s failure to comply with a court order and to
22
prosecute this case that is causing delay. Therefore, the third factor 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 of
27
these proceedings, the preclusion of evidence or witnesses is not available. Additionally, because
28
the dismissal being considered in this case is without prejudice, the court is stopping short of
2
1
using the harshest possible sanction of dismissal with prejudice.
2
3
Finally, because public policy favors disposition on the merits, this factor weighs against
dismissal. Id.
4
Accordingly:
5
1. The clerk of the court is directed to randomly assign a district judge to this case;
6
2. It is recommended that:
7
a. this case be dismissed for failure to state a claim, failure to prosecute, and
8
failure to comply with court orders; and
9
b. the clerk be directed to close this case.
10
These findings and recommendations will be submitted to the U.S. district judge assigned
11
to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days of
12
service of these findings and recommendations, plaintiff may file written objections with the
13
court. If plaintiff files such objections, he should do so in a document captioned “Objections to
14
Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
15
objections within the specified time may result in the waiver of rights on appeal. See Wilkerson v.
16
Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
17
(9th Cir. 1991)).
18
19
IT IS SO ORDERED.
20
Dated:
November 23, 2018
21
UNITED STATES MAGISTRATE JUDGE
22
23
24
25
26
27
28
3
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?