(PC) Garcia v. Kongara

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

ADRIAN DE LOS SANTOS GARCIA, 1:20-cv-000769-GSA-PC

Plaintiff, ORDER FOR CLERK TO RANDOMLY

ASSIGN A DISTRICT COURT JUDGE TO

v. THIS CASE

DR. KONGARA, et al., and

Defenda nts. FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT THIS CASE BE DISMISSED WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY

WITH COURT ORDER (ECF No. 8.)

OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS

On September 10, 2021, the Court issued a screening order requiring Plaintiff to either (1) file an amended complaint or (2) notify the Court that he is willing to proceed with the medical claim against defendant Dr. Kongara found cognizable by the court, within thirty days. (ECF No. 8.) The thirty-day time period has now expired and Plaintiff has not filed an amended complaint, submitted a notice to the court, or filed any other response to the screening order.1

1 On September 22, 2021, the United States Postmaster returned the findings and recommendations to the court with a notation on the envelope that the mail was undeliverable and Plaintiff has been paroled. (Court Docket.) Plaintiff has not notified the court of any change in his address. Absent such notice, service at a party’s prior address is fully effective. Local Rule 182(f)

In determining whether to dismiss this action for failure to comply with the directives set forth in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has been pending since June 2, 2020. Plaintiff’s failure to respond to the Court's order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend its scarce resources assisting a litigant who will not help himself by litigating his case. Thus, both the first and second factors weigh in favor of dismissal.

Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to file an amended complaint or submit a notice to the Court that is causing delay. Therefore, the third factor weighs in favor of dismissal.

As for the availability of lesser sanctions, at this stage in the proceedings there is little available to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, making monetary sanctions of little use, and given the early stage of these proceedings, the preclusion of evidence or witnesses is not available. However, inasmuch as the dismissal being considered in this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction of dismissal with prejudice.

Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643.

Order Accordingly, the Clerk is directed to randomly assign a district judge to this case. and Recommendations and Conclusion Based on the foregoing, the court HEREBY RECOMMENDS that:

1. This action be dismissed, without prejudice, based on Plaintiff’s failure to comply with the court’s screening order issued on September 10, 2021; and

2. The clerk be directed to close this case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days from the date of service of these findings and recommendations, Plaintiff may file written objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

Dated: October 29, 2021 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE