Sierra v. Director of CDCR et al

Filing 92

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/4/2021 RECOMMENDING this action be dismissed. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH ALAN SIERRA,

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No. 2: 16-cv-1067 MCE KJN P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

DIRECTOR OF DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff is a former state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. For the reasons stated herein, the undersigned recommends that

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this action be dismissed for failure to prosecute.

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On May 5, 2017, the court denied plaintiff’s application to proceed in forma pauperis and

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ordered plaintiff to pay the filing fee within thirty days. (ECF No. 64.) On April 27, 2021, the

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Ninth Circuit Court of Appeals reversed the May 5, 2017 order and remanded this action. (ECF

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No. 87.) On May 19, 2021, the mandate was issued. (ECF No. 88.)

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On July 8, 2021, the undersigned granted plaintiff thirty days to file a second amended

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complaint raising all claims against all defendants he intended to name. (ECF No. 89.) The

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undersigned ordered that if plaintiff did not file a second amended complaint within that time, the

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undersigned would screen the amended complaint filed December 16, 2016. (Id.)
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Thirty days passed from July 8, 2021, and plaintiff did not file a second amended
complaint.

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On August 24, 2021, the undersigned issued an order screening the amended complaint.

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(ECF No. 90.) The undersigned found that some of the claims raised in the amended complaint

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were potentially colorable and others were not. (Id.) The undersigned granted plaintiff thirty

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days to file a second amended complaint or a notice that he intended to proceed on the potentially

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colorable claims in the amended complaint. (Id.) The undersigned cautioned that failure to

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respond to the August 24, 2021 order would result in a recommendation of dismissal for lack of

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prosecution. (Id.)

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Thirty days passed and plaintiff did not file a response to the August 24, 2021 order.

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However, the court received two telephone calls from plaintiff after August 24, 2021. In these

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telephone calls, plaintiff stated that he had difficulty filing a written request for extension of time.

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Plaintiff verbally requested an extension of time to respond to the August 24, 2021 order.

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On September 24, 2021, the undersigned granted plaintiff thirty days to respond to the

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August 24, 2021 order. (ECF No. 91.) The undersigned advised plaintiff that no further verbal

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requests for extension of time would be granted. (Id.) The undersigned also cautioned plaintiff

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that the undersigned would recommend dismissal of this action for failure to prosecute if plaintiff

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failed to file a written response to the August 24, 2021 order within thirty days. (Id.)

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Thirty days passed from September 24, 2021, and plaintiff did not file a written response
to the August 24, 2021 order.
In determining whether to dismiss an action for failure to prosecute or failure to comply

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with a court order, the court must weigh the following factors: (1) the public’s interest in

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

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prejudice to defendants; (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 Cir.

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

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Here, the first two factors strongly support dismissal of this action. The action has been
pending for over five years. Plaintiff failed to respond to the August 24, 2021 order despite
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having been granted adequate opportunity to file his response. This failure to prosecute and

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follow the court’s orders hinders the court’s ability to move this case toward disposition and

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suggests that plaintiff does not intend to litigate this action diligently.

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With regard to the third factor, prejudice to defendants, the undersigned observes that

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defendants have not been served. The pendency of a lawsuit is not sufficiently prejudicial in and

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of itself to warrant dismissal. Pagtalunan, 291 F.3d at 642. Plaintiff is not at fault for much of

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the delay in the resolution of this action. However, unnecessary delay inherently increases the

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risk that witnesses’ memories will fade and evidence will become stale. Id. The unexplained and

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unnecessary delay in the prosecution of this action caused by plaintiff’s failure to respond to the

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August 24, 2021 order favor a finding of inevitable prejudice to defendants caused by fading

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memories and evidence becoming stale.
The fifth factor also favors dismissal. Despite the court’s repeated attempts to obtain a

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response to the August 24, 2021 order, plaintiff has shown he is either unwilling or unable to

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comply with court orders by failing to file responsive documents and failing to cooperate in

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prosecuting this action. The court finds no suitable alternative to dismissal of this action.
The fourth factor, public policy favoring disposition of cases on their merits, weighs

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against dismissal of this action as a sanction. However, for the reasons set forth supra, the first,

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second, third, and fifth factors support dismissal. Under the circumstances of this case, those

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factors outweigh the general public policy favoring disposition of cases on their merits. See

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Ferdik, 963 F.2d at 1263.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 4, 2021

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Si1067.56

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