Dial v. Matevousion, et al.

Filing 25

FINDINGS and RECOMMENDATIONS that the court dismiss the case for Plaintiff's failures to prosecute and to comply with court orders signed by Magistrate Judge Jeremy D. Peterson on 7/2/2019. Referred to Judge Dale A. Drozd; Objections to F&R's due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAUNDELLE DIAL,

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Plaintiff,

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Case No. 1:18-cv-00679-DAD-JDP
FINDINGS AND RECOMMENDATIONS
THAT THE COURT DISMISS THE CASE
FOR PLAINTIFF’S FAILURES TO
PROSECUTE AND TO COMPLY WITH
COURT ORDERS

v.
ANDRE MATEVOUSION, et al.,
Defendants.

FOURTEEN-DAY DEADLINE

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Plaintiff is a federal prisoner proceeding without counsel in this civil rights action

16 brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
17 (1971). On May 20, 2019, we screened plaintiff’s complaint under 28 U.S.C. § 1915A and
18 concluded that he had (1) improperly joined defendants and (2) failed to allege how each
19 defendant had personally participated in violating his rights. ECF No 24. Accordingly, the
20 court ordered plaintiff to file a first amended complaint or notify the court in writing that he did
21 not agree to file an amended complaint. Id. Plaintiff failed to respond within the allotted time,
22 thereby disobeying a court order.
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The court may dismiss a case for plaintiff’s failure to prosecute or failure to comply

24 with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv.,
25 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court
26 has duties to resolve disputes expeditiously and to avoid needless burden for the parties. See
27 Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
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In considering whether to dismiss a case for failure to prosecute, a court ordinarily

2 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the
3 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
4 policy favoring disposition of cases on their merits and (5) the availability of less drastic
5 sanctions.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v.
6 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). These heuristic factors merely guide the court’s
7 inquiry; they are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA)
8 Products Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
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“The public’s interest in expeditious resolution of litigation always favors dismissal.”

10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California
11 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of
12 dismissal.
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Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently

14 prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay
15 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,
16 id. at 643, and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the
17 third factor weighs in favor of dismissal.
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As for the availability of lesser sanctions, at this stage in the proceedings there is little

19 available to the court that would constitute a satisfactory lesser sanction while protecting the
20 court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of
21 little use, considering plaintiff’s apparent inability to pay the filing fee, and—given the stage of
22 these proceedings—the preclusion of evidence or witnesses is not available. Accordingly, the
23 fourth factor also weighs in favor of dismissal.
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Finally, because public policy favors disposition on the merits, this factor weighs

25 against dismissal. Id.
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After weighing the factors, including the court’s need to manage its docket, the court

27 finds that dismissal is appropriate. The court recommends dismissal without prejudice.
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FINDINGS AND RECOMMENDATIONS

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The court recommends that the case be dismissed for plaintiff’s failures to prosecute

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3 and comply with court orders. The undersigned submits these findings and recommendations
4 to the U.S. district judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local
5 Rule 304. Within 14 days of the service of the findings and recommendations, the parties may
6 file written objections to the findings and recommendations with the court and serve a copy on
7 all parties. The document containing the objections must be captioned “Objections to
8 Magistrate Judge’s Findings and Recommendations.” The presiding district judge will then
9 review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). The parties’ failure
10 to file objections within the specified time may waive their rights on appeal. See Wilkerson v.
11 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).
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IT IS SO ORDERED.

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Dated:

July 2, 2019

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UNITED STATES MAGISTRATE JUDGE

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