(PC) Colis v. Watson et al

Filing 13

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 5/9/2024. Objections to F&R due within THIRTY DAYS. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EUGENE COLIS,
Plaintiff,

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v.
RONALD E. WATSON, et al.,
Defendants.

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Case No. 1:23-cv-01578-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 Eugene Colis is confined at the Tuolumne County Jail and he is proceeding
pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. For
reasons stated below, the Court recommends that this case be dismissed without prejudice for
failure to prosecute.
I.

BACKGROUND

Plaintiff filed the Complaint commencing this action on November 8, 2023. (ECF No.
1). Plaintiff alleged that police officers used excessive force when they arrested him, and that
jail officials denied him a complaint form. (See generally ECF No. 1). The Court has screened
the complaint and on March 26, 2024, issued a screening order holding that Plaintiff failed to
state any cognizable claims. (ECF No. 12). The Court gave Plaintiff 30 days to either file an
amended complaint or file a statement with the Court that he wants to stand on his original
complaint. (Id. at 11). The Court advised Plaintiff that, if he chooses to stand on the filed

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complaint, the Court would issue “findings and recommendations to a district judge

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recommending dismissal of the action” consistent with the Court’s screening order. (Id. at 10).

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Finally, the Court has warned the Plaintiff that “Failure to comply with this order may result in

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the dismissal of this action.” (ECF No. 12 at 11; see also ECF No. 3 at 1 (warning Plaintiff that

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

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sanctions which may include dismissal of the case.”))

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

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

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original complaint, or otherwise communicated with the Court.

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II.

LEGAL STANDARDS

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

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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 an amended complaint

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

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order. Allowing this case to proceed further without any indication that Plaintiff intends to
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prosecute his case is a waste of judicial resources. See Hall v. San Joaquin County Jail, No.

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

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

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diligently pursuing this case.”). 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.
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, 10). 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.” Plaintiff is advised that failure to file objections

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

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

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1991)).

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IT IS SO ORDERED.
Dated:

May 9, 2024

/s/
UNITED STATES MAGISTRATE JUDGE

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