The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL ANTHONY HOWARD, Case No. 1:18-cv-01710-DAD-EPG (PC)
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Plaintiff, FINDINGS AND RECOMMENDATIONS,
10 RECOMMENDING THAT: 1) THIS CASE
v. BE DISMISSED, WITHOUT PREJUDICE,
11 BECAUSE OF PLAINTIFF’S FAILURE
SGT. ENCINAS, et al., TO COMPLY WITH A COURT ORDER
12 AND TO PROSECUTE THIS CASE; AND
Defendants. 2) ALL OUTSTANDING MOTION(S) BE
13 DENIED AS MOOT
14 (ECF No. 65)
15 OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS
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17 Michael Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma
18 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983, which includes state law
19 claims.
20 On July 12, 2021, Defendants filed a motion for summary judgment “on the grounds
21 that Plaintiff failed to properly exhaust administrative remedies related to the federal claims
22 asserted in this action as required by 42 U.S.C. § 1997e; and Plaintiff failed to comply with the
23 Government Claims Act, a prerequisite to maintaining his state-law claims.” (ECF No. 61, p.
24 1). Defendants ask the Court to dismiss the action without prejudice. (ECF No. 61-2, p. 14).
25 Plaintiff was required to file an opposition or a statement of non-opposition to the
26 motion within twenty-one days, Local Rule 230(l), but did not do so. Accordingly, the Court
27 ordered Plaintiff to file an opposition or a statement of non-opposition within thirty days. (ECF
28 No. 65). The Court warned Plaintiff that if he failed to comply with the order, “in ruling on
1 Defendants’ motion for summary judgment the Court may treat the facts asserted by
2 Defendants in their motion for summary judgment as undisputed. Alternatively, the Court may
3 recommend that this case be dismissed for failure to prosecute and failure to comply with a
4 court order.” (Id. at 2).
5 Plaintiff’s thirty-day deadline has passed, and Plaintiff once again failed to file an
6 opposition or a statement of non-opposition. Accordingly, the Court will recommend that this
7 action be dismissed, without prejudice, for failure to comply with a court order and to prosecute
8 this case. The Court will also recommend that all outstanding motion(s) be denied as moot.
9 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to
10 comply with a court order, the Court must weigh the following factors: (1) the public’s interest
11 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of
12 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the
13 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d
14 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
15 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’”
16 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly,
17 this factor weighs in favor of dismissal.
18 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to
19 determine whether the delay in a particular case interferes with docket management and the
20 public interest…. It is incumbent upon the Court to manage its docket without being subject to
21 routine noncompliance of litigants....” Id. Here, Plaintiff’s repeated failure to respond to
22 Defendants’ motion for summary judgment, despite being ordered to do so by the Court, is
23 consuming the Court’s limited time. It is also delaying this case and interfering with docket
24 management. Therefore, the second factor weighs in favor of dismissal.
25 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in
26 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay
27 inherently increases the risk that witnesses’ memories will fade and evidence will become
28 stale,” id. at 643, and it is Plaintiff’s repeated failure to respond to Defendants’ motion for
1 summary judgment that is causing delay. Therefore, the third factor weighs in favor of
2 dismissal.
3 As for the availability of lesser sanctions, given that Plaintiff has chosen not to
4 prosecute this action and has failed to comply with a court order, despite being warned of
5 possible dismissal, there is little available to the Court which would constitute a satisfactory
6 lesser sanction while protecting the Court from further unnecessary expenditure of its scarce
7 resources. Considering Plaintiff’s incarceration and in forma pauperis status, it appears that
8 monetary sanctions are of little use. And as it appears that Plaintiff has decided to stop
9 prosecuting this case, excluding evidence would be a meaningless sanction. Additionally,
10 because the dismissal being considered in this case is without prejudice, the Court is stopping
11 short of using the harshest possible sanction of dismissal with prejudice.
12 Finally, because public policy favors disposition on the merits, this factor weighs
13 against dismissal. Id.
14 After weighing the factors, the Court finds that dismissal without prejudice is
15 appropriate. Accordingly, the Court HEREBY RECOMMENDS that:
16 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to
17 comply with a court order and to prosecute this case;
18 2. All outstanding motion(s) be denied as moot; and
19 3. The Clerk of Court be directed to close this case.
20 These findings and recommendations are submitted to the United States district judge
21 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen
22 (14) days after being served with these findings and recommendations, any party may file
23 written objections with the court. Such a document should be captioned “Objections to
24 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be
25 served and filed within fourteen (14) days after service of the objections.
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1 The parties are advised that failure to file objections within the specified time may
2 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.
3 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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5 IT IS SO ORDERED.
° ll Dated: _ October 13, 2021 [see hey
7 UNITED STATES MAGISTRATE JUDGE
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