(PC) Duncan v. Cisneros

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DIONTAE JOHAN DUNCAN, Case No. 1:23-cv-01692-EPG (PC) Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE v. AND T. CISNEROS, et al., FINDINGS AND RECOMMENDATIONS TO 13 DISMISS THIS ACTION WITHOUT Defendants.

14 PREJUDICE FOR FAILURE TO PROSECUTE AND FAILURE TO COMPLY 15 WITH COURT’S ORDERS (ECF No. 11) OBJECTIONS, IF ANY, DUE WITHIN 18 THIRTY (30) DAYS 19 Plaintiff Diontae Johan Duncan is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. For reasons stated below, the Court recommends that this case be dismissed without prejudice for failure to prosecute and failure to comply with a court order.

23 I. BACKGROUND 24 Plaintiff initially commenced this action on November 6, 2023, in the Sacramento Division of the United States District Court for the Eastern District of California. (ECF Nos. 1, 5). On December 6, 2023, the case was transferred to the Fresno Division. (ECF No. 5).

27 The Court screened Plaintiff’s complaint on June 18, 2024, and concluded that it failed to state any cognizable claims. (ECF No. 11 at 10). Plaintiff was granted 30 days in which to file an amended complaint or to inform the Court that he wished to stand on his original complaint. (Id. at 10-11). Plaintiff was advised of the requirements for an amended complaint and instructed that if he chose to stand on his original complaint, “the Court will issue findings and recommendations to a district judge consistent with this order.” (Id.). The Court also warned Plaintiff that, “Failure to comply with this order may result in the dismissal of this action.” (Id. at 11).

7 The deadline to respond to the Court’s screening order has now passed, and Plaintiff has not filed an amended complaint or a statement with the Court that he wishes to stand on his original complaint.

10 II. LEGAL STANDARDS 11 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure to comply with court orders and to prosecute. In determining whether to dismiss an action under Rule 41(b) for failure to prosecute or failure to comply with a Court 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)).

19 III. ANALYSIS 20 In applying the Pagtalunan factors to this case, the first factor weighs in favor of dismissal, because “[t]he 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) (internal quotation marks omitted).

24 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest.” Id. Here, Plaintiff has failed to file an amended complaint or otherwise notify the Court that he wants to stand on his complaint as required by a court order. Allowing this case to proceed further without any indication that Plaintiff intends to prosecute this case is a waste of judicial resources. See Hall v. San Joaquin County Jail, No. 2:13-cv-0324 AC P, 2018 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not continue to drag out these proceedings when it appears that plaintiffs have no intention of 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 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991). However, “delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” Id. at 643, and it is Plaintiff’s failure to comply with a court order that is causing delay and preventing this case from 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 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. Monetary sanctions are of little use, considering Plaintiff’s in forma pauperis status.

15 (See ECF No. 9). And, given the stage of these proceedings, the preclusion of evidence or witnesses is not available. Moreover, dismissal without prejudice is the lesser sanction available to the Court. Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action with prejudice for failure to comply with court orders and to prosecute. Fed. R. Civ. P. (41)(b); see also Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962) (holding that Rule 41(b) allows sua sponte dismissal by the Court because “[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”) Therefore, the fourth factor also weighs in favor of dismissal.

25 Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Pagtalunan, 291 F.3d at 643.

1 CONCLUSION AND RECOMMENDATIONS 2 After weighing the factors, the Court finds that dismissal without prejudice is || appropriate.

4 Accordingly, it is RECOMMENDED that: 5 1. This action be dismissed without prejudice under Federal Rule of Civil 6 Procedure 41(b) for failure to prosecute and failure to follow Court’s orders; and 7 2. The Clerk of Court be directed to close this case.

8 These findings and recommendations will be submitted to the United States district || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within || thirty (30) days after being served with these findings and recommendations, Plaintiff may file || written objections with the Court. The document should be captioned “Objections to Magistrate || Judge’s Findings and Recommendations.” Any objections shall not exceed fifteen (15) pages, || including exhibits. 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.

18 || Dated: _ October 23, 2024 □□□ hey 19 UNITED STATES MAGISTRATE JUDGE