1

2 3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

10

11 MICHAEL FRIES, 1:22-cv-00380-ADA-GSA-PC

12 FINDINGS AND RECOMMENDATIONS, Plaintiff, RECOMMENDING THAT THIS CASE BE 13 DISMISSED, WITHOUT PREJUDICE, FOR vs. PLAINTIFF’S FAILURE TO COMPLY 14 WITH COURT’S ORDER PFEIFFER, et al., 15 (ECF No. 31.) Defendants. 16 OBJECTIONS, IF ANY, DUE ON OR BEFORE AUGUST 22, 2023 17

18

19 20 I. BACKGROUND 21 Michael Fries (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action 22 pursuant to

. On March 30, 2022, Plaintiff filed the Complaint commencing 23 this action at the United States District Court for the Northern District of California. (ECF No. 24 1.) On March 31, 2022, the case was transferred from the Northern District of California to the 25 Eastern District of California. (ECF No. 4.) 26 On April 10, 2023, the Court issued an order requiring Plaintiff to either: (1) notify the 27 Court that he wishes to stand on the original Complaint, or (2) file an amended complaint on the 28 Court’s form, on or before May 15, 2023. (ECF No. 31.) On May 18, 2023, Plaintiff filed a 1 motion for extension of time to respond to the Court’s order, which was granted by the Court on 2 May 19, 2023, extending the deadline to July 20, 2023. (ECF Nos. 33, 34.) 3 The July 20, 2023 deadline has now expired and Plaintiff has not responded to the Court’s 4 April 10, 2023 order. (Court Record.) Therefore, it will be recommended that this case be 5 dismissed for Plaintiff’s failure to comply with the Court’s order. 6 II. FAILURE TO COMPLY WITH COURT ORDER 7 In determining whether to dismiss this action for failure to comply with the directives set 8 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 9 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 10 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 11 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza,

, 12 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet,

(9th Cir. 1992)). 13 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 14

(quoting Yourish v. California Amplifier,

(9th Cir. 1999)), and here, the 15 action has been pending since March 20, 2022. Plaintiff’s failure to respond to the Court’s order 16 may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court cannot 17 continue to expend its scarce resources assisting a litigant who will not comply with the court’s 18 orders. Thus, both the first and second factors weigh in favor of dismissal. 19 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 20 and of itself to warrant dismissal.”

(citing

). However, “delay inherently 21 increases the risk that witnesses’ memories will fade and evidence will become stale,”

and it 22 is Plaintiff’s failure to either file an amended complaint or notify the Court that he wishes to 23 stand on the original Complaint that is causing delay. Therefore, the third factor weighs in favor 24 of dismissal. 25 As for the availability of lesser sanctions, at this stage in the proceedings there is little 26 available to the Court which would constitute a satisfactory lesser sanction while protecting the 27 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 28 circumstance are of little use, and given the early stage of these proceedings, the preclusion of 1 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 2 this case is without prejudice, the Court is stopping short of issuing the harshest possible sanction 3 of dismissal with prejudice. 4 Finally, because public policy favors disposition on the merits, this factor will always 5 weigh against dismissal. Id. at 643. 6 III. CONCLUSION AND RECOMMENDATIONS 7 Based on the foregoing, the Court HEREBY RECOMMENDS that this case be 8 dismissed, without prejudice, based on Plaintiff’s failure to obey the Court’s order issued on 9 April 10, 2023. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title

(b)(l). On or before 12 August 22, 2023, Plaintiff may file written objections with the Court. Such a document should 13 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 14 advised that failure to file objections within the specified time may result in the waiver of rights 15 on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014) (citing Baxter v. Sullivan, 16

(9th Cir. 1991)). 17 IT IS SO ORDERED. 18

19 Dated: August 4, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20

21 22 23 24 25 26 27 28