(PC) Flores v. Fazio

Filing 8

ORDER to assign a District Judge and FINDINGS and RECOMMENDATIONS to dismiss this action without prejudice for failure to prosecute and failure to comply with court's orders signed by Magistrate Judge Erica P. Grosjean on 6/4/2024. Referred to Judge Jennifer L. Thurston; Objections to F&R due within 30-Days. (Lundstrom, T)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

ALEXANDER FLORES,

10

Plaintiff,

11
v.

12

1:23-cv-00928-EPG (PC)
ORDER TO ASSIGN A DISTRICT JUDGE
AND

J. FAZIO,

13

Defendant.

14
15
16

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

17
18

Plaintiff Alexander Flores is proceeding pro se in this civil rights action filed pursuant

19

to 42 U.S.C. § 1983. For reasons stated below, the Court recommends that this case be

20

dismissed without prejudice for failure to prosecute.

21

I.

22

BACKGROUND
This action was initiated by civil complaint filed by Plaintiff in the Superior Court of

23

California, County of Kern, on April 4, 2023, Case No. BCV-23-101028. (ECF No.1–2).

24

Plaintiff alleges a claim related to conditions of his confinement. (Id. at 4). Defendant removed

25

the case to this Court on June 21, 2023 (ECF No. 1) and requested the Court to screen the

26

complaint under 28 U.S.C. § 1915A(a) (ECF No. 3).

27
28

The Court has screened the complaint and on April 19, 2024, issued a screening order
holding that Plaintiff failed to state any cognizable claims. (ECF No. 6). The Court gave

1

1

Plaintiff 30 days to either file an amended complaint or file a statement with the Court that he

2

wants to stand on his original complaint. (Id. at 7). The Court advised Plaintiff that, if he

3

chooses to stand on the filed complaint, the Court would issue “findings and recommendations

4

to a district judge recommending dismissal of the action” consistent with the Court’s screening

5

order. (Id.). Finally, the Court has warned the Plaintiff that “Failure to comply with this order

6

may result in the dismissal of this action.” (Id.; see also ECF No. 2 at 1 (warning Plaintiff that

7

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

8

sanctions which may include dismissal of the case.”)).
The deadline to respond to the Court’s screening order has now passed, and Plaintiff has

9
10

not filed an amended complaint or a statement with the Court that he wishes to proceed on his

11

original complaint, or otherwise communicated with the Court.

12

II.

13

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

14

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

15

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

16

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

17

litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

18

defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy

19

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

20

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

21

III.

22

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

23

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

24

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

25

(internal quotation marks omitted).

26

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

27

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

28

management and the public interest.” Id. Here, Plaintiff has failed to file an amended complaint

2

1

or otherwise notify the Court that he wants to stand on his complaint as required by a court

2

order. Allowing this case to proceed further without any indication that Plaintiff intends to

3

prosecute his case is a waste of judicial resources. See Hall v. San Joaquin County Jail, No.

4

2:13-cv-0324 AC P, 2018 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not

5

continue to drag out these proceedings when it appears that plaintiffs have no intention of

6

diligently pursuing this case.”). Therefore, the second factor weighs in favor of dismissal.

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

resources. Monetary sanctions are of little use, considering Plaintiff’s incarceration. And, given

17

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

18

Moreover, dismissal without prejudice is the lesser sanction available to the Court. Under

19

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

20

to comply with court orders and to prosecute. Fed. R. Civ. P. (41)(b); see also Link v. Wabash

21

R. Co., 370 U.S. 626, 630–31 (1962) (holding that Rule 41(b) allows sua sponte dismissal by

22

the Court because “[t]he authority of a court to dismiss sua sponte for lack of prosecution has

23

generally been considered an ‘inherent power,’ governed not by rule or statute but by the

24

control necessarily vested in courts to manage their own affairs so as to achieve the orderly and

25

expeditious disposition of cases.”) Therefore, the fourth factor also weighs in favor of

26

dismissal.

27
28

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

3

1

CONCLUSION AND RECOMMENDATIONS

IV.

2
3

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

4

Accordingly, IT IS ORDERED that:

5

1. The Clerk of Court shall assign a district judge to this case.

6

And it is RECOMMENDED that:

7

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

8
9

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

10

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

11

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

12

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

13

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

14

Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections

15

within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,

16

772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

17

1991)).

18
19
20

IT IS SO ORDERED.
Dated:

June 4, 2024

/s/
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28

4