(PC) Torres v. Quick et al

Filing 56

FINDINGS and RECOMMENDATIONS to Dismiss this 1 Action without Prejudice for Failure to Prosecute and Failure to Comply with Court's Order signed by Magistrate Judge Erica P. Grosjean on 05/09/2024. Referred to Judge Sherriff; Objections to F&R due within Thirty-Days. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD TORRES,
Plaintiff,

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v.
JAYSON QUICK, et al.,
Defendants.

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Case No. 1:22-cv-01536-KES-EPG (PC)
FINDINGS AND
RECOMMENDATIONS TO DISMISS
THIS ACTION WITHOUT PREJUDICE
FOR FAILURE TO PROSECUTE AND
FAILURE TO COMPLY WITH
COURT’S ORDERS
OBJECTIONS, IF ANY,
DUE WITHIN 30 DAYS

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Plaintiff Edward Torres is proceeding pro se and in forma pauperis in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. For reasons stated below, the Court recommends that

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this case be dismissed without prejudice for failure to prosecute.

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I.

BACKGROUND

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Plaintiff filed the Complaint commencing this action on November 30, 2022. (ECF No.

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1). The Court screened Plaintiff’s complaint and found that the following claims should

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proceed past the screening stage: Plaintiff’s Eighth Amendment excessive force claims against

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defendants Quick, Garza, Garcia, Valadez, Prince, and Martinez; his Eighth Amendment failure

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to protect claims against defendants Quick, Garza, Garcia, Valadez, Prince, and Martinez; and

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his Eighth Amendment claim against defendant Ontiveros for deliberate indifference to his

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serious medical needs. (Id.).
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At the start of this case, the Court issued Informational Order, warning Plaintiff he

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“must keep the Court and opposing parties informed of the party’s correct current address.

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Local Rule 182(f). If a party moves to a different address without filing and serving a notice of

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change of address, documents served at a party’s old address of record shall be deemed

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received even if not actually received. Id.” (ECF No. 4 at 5). The Court also cautioned Plaintiff

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that failure to follow the Court’s orders and all applicable rules “will be grounds for imposition

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of sanctions which may include dismissal of the case.” (Id. at 1).

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After all the defendants were served and appeared in this action, on February 29, 2024,

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the Court ordered parties to file scheduling statements within 30 days. (ECF No. 50). However,

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this order was returned to Court on March 8, 2024, marked as “Undeliverable, Not in Custody.”

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The deadline set by the Court’s order to file the statements (ECF No. 50) has passed,

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and while Defendants timely filed theirs (ECF Nos. 53, 54), Plaintiff has failed to do so.

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Accordingly, on April 10, 2024, the Court issued a minute order granting Plaintiff a single sua

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sponte extension, until April 24, 2024, to file his statement. (ECF No. 55). The Court also

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advised Plaintiff that “that failure to file his statement by this date may result in the dismissal of

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this case.” (Id.; see also ECF No. 4 at 1 (failure to follow the Court’s orders and all applicable

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rules “will be grounds for imposition of sanctions which may include dismissal of the case.”))

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This order was likewise returned to Court on April 29, 2024, marked as “Undeliverable, Not in

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Custody.”

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The extended deadline to respond to the Court’s order has now passed, and Plaintiff has

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not filed his scheduling statement, updated his address, or had otherwise communicated with

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the Court.

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II.

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Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure

LEGAL STANDARDS

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to comply with court orders and to prosecute. In determining whether to dismiss an action

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under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court

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must weigh the following factors: (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to
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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy

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favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th

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Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)).

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III.

ANALYSIS

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In applying the Pagtalunan factors to this case, the first factor weighs in favor of

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dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors

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dismissal.” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)

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(internal quotation marks omitted).

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As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in

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the best position to determine whether the delay in a particular case interferes with docket

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management and the public interest.” Id. Here, Plaintiff has failed to file a scheduling

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statement, update his address, or otherwise communicate with the Court. Allowing this case to

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proceed further without any indication that Plaintiff intends to prosecute his case is a waste of

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judicial resources. See Hall v. San Joaquin County Jail, No. 2:13-cv-0324 AC P, 2018 WL

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4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not continue to drag out these

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proceedings when it appears that plaintiffs have no intention of diligently pursuing this case.”).

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Therefore, the second factor weighs in favor of dismissal.

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Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a

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lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291

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F.3d at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that

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witnesses’ memories will fade and evidence will become stale,” id. at 643, and it is Plaintiff’s

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failure to comply with a court order that is causing delay and preventing this case from

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progressing. Therefore, the third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in

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the proceedings there is little available to the Court which would constitute a satisfactory lesser

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sanction while protecting the Court from further unnecessary expenditure of its scarce

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resources. Monetary sanctions are of little use, considering Plaintiff’s incarceration and in

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forma pauperis status. (See ECF Nos. 9, 12). And, given the stage of these proceedings, the
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preclusion of evidence or witnesses is not available. Moreover, dismissal without prejudice is

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the lesser sanction available to the Court. Under Federal Rule of Civil Procedure 41(b), a court

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may dismiss an action with prejudice for failure to comply with court orders and to prosecute.

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Fed. R. Civ. P. (41)(b); see also Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962) (holding

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that Rule 41(b) allows sua sponte dismissal by the Court because “[t]he authority of a court to

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dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’

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governed not by rule or statute but by the control necessarily vested in courts to manage their

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own affairs so as to achieve the orderly and expeditious disposition of cases.”) Therefore, the

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fourth factor also weighs in favor of dismissal.

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Finally, because public policy favors disposition on the merits, this factor weighs
against dismissal. Pagtalunan, 291 F.3d at 643.

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IV.

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After weighing the factors, the Court finds that dismissal without prejudice is

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CONCLUSION AND RECOMMENDATIONS

appropriate.

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Accordingly, the Court RECOMMENDS that:

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1. This action be dismissed without prejudice under Federal Rule of Civil Procedure
41(b) for failure to prosecute and failure to follow Court’s orders; and

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2. The Clerk of Court be directed to close this case.

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These findings and recommendations will be submitted to the United States district

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judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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thirty days after being served with these findings and recommendations, Plaintiff may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in

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the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014)

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

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IT IS SO ORDERED.
Dated:

May 9, 2024

/s/
UNITED STATES MAGISTRATE JUDGE

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