1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ALASKA

3

4 BASIL G. ANDREW,

5 Plaintiff,

6 v. Case No. 3:22-cv-00071-SLG-KFR

7 JOHN DOE, et al.,

8 Defendants. 9

10 REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE TO PROSECUTE

11 On March 31, 2022, Basil G. Andrew, a self-represented prisoner (hereinafter

12 “Plaintiff”), filed a Prisoner’s Complaint under the Civil Rights Act,

1983 (hereinafter “Complaint”), and a civil cover sheet.1 Subsequently, on May 2,

14 2022, Plaintiff filed an Affidavit, followed on June 7, 2022, by an Application to

15 Waive Prepayment of the Filing Fee.2

16 On September 21, 2022, this Court issued a Screening Order findi ng that

17 Plaintiff failed to state a claim upon which relief may be granted, but provided

18 guidance on the Complaint’s deficiencies, and granted leave to amend.3 The

19 Court’s Screening Order instructed: “If Plaintiff does not file either an Amended

20 Complaint or a Notice of Voluntary Dismissal by October 28, 2022, this case may be

21 dismissed with prejudice, and he risks receiving a strike.”4

22 I. Failure to Prosecute

23 As of the date of this Report and Recommendation, Plaintiff has not filed an

24 Amended Complaint or a Voluntary Notice of Dismissal, as ordered by the Court’s 25 26 1 Docs. 1 and 2. 27 2 Docs. 3 and 7. 3 Doc. 9. 28 4

1 September 21, 2022, Screening Order.5 For that reason, this Court now recommends

2 that the District Court dismiss Plaintiff’s Complaint without prejudice for failure to

3 prosecute.

4 Rule 41(b) of Federal Rules of Civil Procedure permits dismissal due to a

5 plaintiff’s failure to prosecute or comply w ith a court order. In deciding whether to 6 dismiss for failure to prosecute or comply with court orders, a district court must 7 consider five factors: “(1) the public’s interest in expeditious resolution of litigation; 8 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 9 (4) the public policy favoring disposition of cases on their merits; and (5) the 10 availability of less drastic sanctions.”6 11 Here, the first two factors — the public’s interest in expeditious resolution of 12 litigation and the Court's need to manage its docket — weigh in favor of dismissal. 13 Plaintiff’s failure to file an amended complaint within the specified timeline suggests 14 Plaintiff does not intend to litigate this action diligently.7 Further, a presumption of 15 prejudice to a defendant arises when the plaintiff unreasonably 16 delays prosecution of an action.8 Because Plaintiff has not offered any justifiable 17 reason for failing to meet the Court’s deadline, the third factor also favors dismissal.9 18 The fourth factor usually weighs against dismissal because public policy 19 favors disposition on the merits.10 However, “this factor lends little support to a 20 party whose responsibility it is to move a case toward disposition on the merits but 21 22 5

23 6 Hernandez v. City of El Monte,

(9th Cir. 1998) (quoting Henderson v. Duncan,

(9th Cir. 1986)). 24 7 Morris v. Morgan Stanley & Co.,

(9th Cir. 1991) (a plaintiff has the burden “to move toward... disposition at a reasonable pace, and to refrain from dilatory and evasive 25 tactics”). 26 8 Anderson v. Air West,

(9th Cir. 1976). 9 See Hernandez v. City of El Monte,

(9th Cir. 1998) (reiterating that the 27 burden of production shifts to the defendant to show at least some actual prejudice only after the plaintiff has given a non-frivolous excuse for delay). 28 10 Pagtalunan v. Galaza,

(9th Cir. 2002). 1 whose conduct impedes progress in that direction,”11 which is the case here. Thus,

2 although this factor typically weighs against dismissal, it does not overcome

3 Plaintiff’s failure to amend his complaint.

4 The fifth factor is comprised of three subparts, which include “whether the

5 court has considered lesser sanctions, wh ether it tried them, and whether it warned 6 the recalcitrant party about the possibility of case-dispositive sanctions.”12 The 7 Court’s Screening Order provided Plaintiff guidance on relevant law and an 8 opportunity to amend his complaint.13 Further, the Court expressly warned Plaintiff 9 that his failure to comply with the Court’s order could result in a dismissal of this 10 action.14 11 The Court cannot move this case toward disposition without Plaintiff's 12 compliance with Court orders or participation in this litigation. Additionally, 13 Plaintiff had adequate warning that dismissal with prejudice could result from his 14 noncompliance. However, dismissal without prejudice is a less drastic alternative. 15 Dismissal without prejudice “minimizes prejudice to a defendant and preserves a 16 plaintiff's ability to seek relief.”15 Accordingly, this Court recommends dismissal 17 without prejudice for failure to prosecute. 18 19 11 In re Phenylpropanolamine (PPA) Products Liability Litigation,

, 1228 20 (9th Cir. 2006) (citing In re Exxon Valdez,

(9th Cir. 1996)). 12 Conn. Gen. Life Ins., 482 F.3d at 1096 (internal citation omitted). 21 13 Doc. 9 (providing guidance about Fed. R. Civ. P. 8 and the pleading requirements of a 22 § 1983 claim). 14 Id. at 14. 23 15 See, e.g., Henderson,

(a district court need not exhaust every sanction short of dismissal before finally dismissing a case but must explore possible and meaningful 24 alternatives) (internal citation omitted); see also Adriana International Corp. v. Thoeren,

(9th Cir. 1990) (explaining despite all the elaboration of factors, it is not 25 always necessary for the court to impose less serious sanctions first, or to give any explicit 26 warning); Gleason v. World Sav. Bank, FSB,

, at *2 (N.D. Cal. July 26, 2013). (finding dismissal under Rule 41(b) appropriate where the court previously attempted the 27 lesser sanction of issuing an order to show cause and giving the plaintiff an additional opportunity to re-plead); Alli v. City and County of San Francisco,

(N.D.

) (internal citations omitted). 1 This dismissal will count as a “strike” against Plaintiff under § 1915(g).16

2 After three strikes, Plaintiff will be unable to file lawsuits under in forma pauperis

3 status, unless he demonstrates “imminent danger of serious physical injury.”17 The

4 Court cautions Plaintiff as to his strike status.

5 IT IS THEREFORE RECOMMENDE D: 6 1. This action should be DISMISSED WITHOUT PREJUDICE. 7 2. This dismissal should constitute a strike to Plaintiff under

1915(g). And the Court should instruct Plaintiff that if he receives three strikes, he 9 will be unable to file future lawsuits in federal court without paying the filing fee or 10 demonstrating he is in imminent danger of serious physical injury with any request 11 to waive prepayment of the filing fee. 12 3. The Clerk of Court should issue a final judgement. 13 DATED this 15th day of November, 2022, at Anchorage, Alaska. 14 s/ Kyle F. Reardon 15 KYLE F. REARDON United States Magistrate Judge 16 District of Alaska 17 18 19 20 21 22 23 24 25 26 16 Lomax v. Ortiz-Marquez,

(2020) (holding that Section 1915(g)’s three- 27 strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without prejudice.) 28 17

(g). 1 NOTICE OF RIGHT TO OBJECT

2 Under

(b)(1), a district court may designate a magistrate

3 judge to hear and determine matters pending before the Court. For dispositive

4 matters, a magistrate judge reports findings of fact and provides recommendations

5 to the presiding district court judge.18 A d istrict court judge may accept, reject, or 6 modify, in whole or in part, the magistrate judge’s order.19 7 A party may file written objections to the magistrate judge’s order within 14 8 fourteen days.20 Objections and responses are limited to five (5) pages in length 9 and should not merely reargue positions previously presented. Rather, objections 10 and responses should specifically identify the findings or recommendations 11 objected to, the basis of the objection, and any legal authority in support. Reports 12 and recommendations are not appealable orders. Any notice of appeal pursuant to 13 Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court’s 14 judgment.21 15 16

17 18 19 20 21 22 23 24 25 26 18

(b)(1)(B). 27 19

(b)(1)(C). 20

28 21 See Hilliard v. Kincheloe,

(9th Cir. 1986).