(PC) Carrion v. Doerer

Filing 5

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 1/7/2025. Referred to Judge Jennifer L. Thurston; Objections to F&R due within 30-Days. (Deputy Clerk TEL)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AARON M. CARRION,
Plaintiff,

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v.

1:24-cv-01187-EPG (PC)
ORDER TO ASSIGN A DISTRICT JUDGE
AND

J. DOERER,
Defendant.

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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 Aaron M. Carrion is a federal prisoner proceeding pro se in this civil rights
action filed pursuant to 42 U.S.C. § 1983.
This case was severed from Benanti v. Doerer, Case No. 1:24-cv-01108-CDB (PC), on
October 3, 2024. (ECF No. 2). In that case, another plaintiff, Michael Benanti, filed a complaint
purportedly as a class action on behalf of himself and several other individuals, including the
named Plaintiff in this case, Carrion. (See generally ECF No. 1). However, only Benanti signed
that original complaint. (ECF No. 1 at 4). Carrion did not sign the complaint or otherwise
indicate he intended to join that lawsuit.
Because a non-attorney plaintiff like Benanti proceeding pro se may not represent
others, Magistrate Judge Christopher D. Baker in Benanti denied the request to proceed in a

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class action, severed each of the individual plaintiff’s claims, opened individual cases for each

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plaintiff listed on the caption, and directed each plaintiff to submit a signed complaint within 45

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days from service of the order. (ECF No. 2 at 8–9). The October 3, 2024 order warned that

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“[f]ailure to comply with this order may result in the dismissal of the plaintiff’s case.” (Id. at 9).

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The current case with Plaintiff Carrion, Carrion v. Doerer, 1:24-cv-01187-EPG, is one

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such severed case. However, Plaintiff Carrion has not responded to the Court order or

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otherwise indicated that he intends to prosecute this case.

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Given Carrion’s failure to respond, and in light of the fact that Carrion did not sign the

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original complaint but was merely listed in the caption, dismissal for failure to prosecute and

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failure to comply with a court order is appropriate, as described further below.

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I.

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LEGAL STANDARDS
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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II.

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 application to proceed in forma

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pauperis or payment of the filing fee, as well as a signed complaint, are overdue and he has

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failed to comply with the Court’s order or otherwise communicate with the Court. Allowing

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this case to proceed further without any indication that Plaintiff intends to prosecute his case is

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

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

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these proceedings when it appears that plaintiffs have no intention of diligently pursuing this

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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.

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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, given

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

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

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

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

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

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

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

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

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

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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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III.

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

appropriate.
Accordingly, IT IS ORDERED that:

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1. The Clerk of Court shall assign a district judge to this case.
And it is RECOMMENDED 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.” Any objections shall be limited to no more than 15

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pages including exhibits. Plaintiff is advised that failure to file objections within the specified

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time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39

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(9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

January 7, 2025

/s/
UNITED STATES MAGISTRATE JUDGE

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