1 2 3 4 5 6

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 MELVIN DISMUKE, Case No. 1:24-cv-00248-EPG (PC) 11 Plaintiff, ORDER TO ASSIGN DISTRICT JUDGE 12 v. AND 13 G. LUNA, et al., FINDINGS AND RECOMMENDATIONS 14 TO DISMISS THIS ACTION WITHOUT Defendants. PREJUDICE FOR FAILURE TO PROSECUTE 15 AND FAILURE TO COMPLY WITH COURT’S ORDERS 16 OBJECTIONS, IF ANY, 17 DUE WITHIN 30 DAYS

18 Plaintiff Melvin Dismuke is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to

. For reasons stated below, the Court 20 recommends that this case be dismissed without prejudice for failure to prosecute. 21 I. BACKGROUND 22 Plaintiff filed the Complaint commencing this action on February 28, 2024. (ECF No. 23 1). Plaintiff alleged that various officers failed to protect him from assault by other inmates. 24 (See generally ECF No. 1). The Court has screened the complaint and on June 25, 2024, issued 25 a screening order holding that Plaintiff failed to state any cognizable claims. (ECF No. 9). The 26 Court gave Plaintiff 30 days to either file an amended complaint or file a statement with the 27 Court that he wants to stand on his original complaint. (Id. at 6–7). The Court advised Plaintiff 28 1 that, if he chooses to stand on the filed complaint, the Court would issue “findings and 2 recommendations to a district judge recommending dismissal of the action” consistent with the 3 Court’s screening order. (Id. at 2–3). Finally, the Court has warned the Plaintiff that “Failure to 4 comply with this order may result in the dismissal of this action.” (Id. at 7; see also ECF No. 3 5 at 1 (warning Plaintiff that failure to follow the Court’s orders and all applicable rules “will be 6 grounds for imposition of sanctions which may include dismissal of the case.”)). 7 The deadline to respond to the Court’s screening order has now passed, and Plaintiff has 8 not filed an amended complaint or a statement with the Court that he wishes to proceed on his 9 original complaint, or otherwise communicated with the Court. 10 II. LEGAL STANDARDS 11 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure 12 to comply with court orders and to prosecute. In determining whether to dismiss an action 13 under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court 14 must weigh the following factors: (1) the public’s interest in expeditious resolution of 15 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 16 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 17 favoring disposition of cases on their merits.” Pagtalunan v. Galaza,

(9th 18 Cir. 2002) (citing Ferdik v. Bonzelet,

, 1260–61 (9th Cir. 1992)). 19 III. ANALYSIS 20 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 21 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 22 dismissal.”

(quoting Yourish v. California Amplifier,

(9th Cir. 1999) 23 (internal quotation marks omitted). 24 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in 25 the best position to determine whether the delay in a particular case interferes with docket 26 management and the public interest.”

Here, Plaintiff has failed to file an amended complaint 27 or otherwise notify the Court that he wants to stand on his complaint as required by a court 28 order. Allowing this case to proceed further without any indication that Plaintiff intends to 1 prosecute his case is a waste of judicial resources. See Hall v. San Joaquin County Jail, No. 2 2:13-cv-0324 AC P,

, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not 3 continue to drag out these proceedings when it appears that plaintiffs have no intention of 4 diligently pursuing this case.”). Therefore, the second factor weighs in favor of dismissal. 5 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 6 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 7 F.3d at 642 (citing Yourish,

). However, “delay inherently increases the risk that 8 witnesses’ memories will fade and evidence will become stale,” id. at 643, and it is Plaintiff’s 9 failure to comply with a court order that is causing delay and preventing this case from 10 progressing. Therefore, the third factor weighs in favor of dismissal. 11 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in 12 the proceedings there is little available to the Court which would constitute a satisfactory lesser 13 sanction while protecting the Court from further unnecessary expenditure of its scarce 14 resources. Monetary sanctions are of little use, considering Plaintiff’s incarceration and in 15 forma pauperis status. (See ECF No. 7). And, given the stage of these proceedings, the 16 preclusion of evidence or witnesses is not available. Moreover, dismissal without prejudice is 17 the lesser sanction available to the Court. Under Federal Rule of Civil Procedure 41(b), a court 18 may dismiss an action with prejudice for failure to comply with court orders and to prosecute. 19 Fed. R. Civ. P. (41)(b); see also Link v. Wabash R. Co.,

, 630–31 (1962) (holding 20 that Rule 41(b) allows sua sponte dismissal by the Court because “[t]he authority of a court to 21 dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ 22 governed not by rule or statute but by the control necessarily vested in courts to manage their 23 own affairs so as to achieve the orderly and expeditious disposition of cases.”) Therefore, the 24 fourth factor also weighs in favor of dismissal. 25 Finally, because public policy favors disposition on the merits, this factor weighs 26 against dismissal. Pagtalunan,

. 27 28 1 IV. CONCLUSION AND RECOMMENDATIONS 2 After weighing the factors, the Court finds that dismissal without prejudice is 3 || appropriate. 4 Based on the foregoing, IT IS ORDERED that: 5 1. The Clerk of Court is directed to assign a district judge to this case. 6 It is further RECOMMENDED that: 7 1. This action be dismissed without prejudice under Federal Rule of Civil 8 Procedure 41(b) for failure to prosecute and failure to follow Court’s orders; and 9 2. The Clerk of Court be directed to close this case. 10 These findings and recommendations will be submitted to the United States district 11 || judge assigned to the case, pursuant to the provisions of Title

(b)(). Within 12 || thirty days after being served with these findings and recommendations, Plaintiff may file 13 || written objections with the Court. The document should be captioned “Objections to Magistrate 14 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 15 || within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 16 ||

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

(9th Cir. 17 |] 1991)). 18 19 IT IS SO ORDERED. Dated: _ August 13, 2024 [Je hey — 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28