(PC) Alvarez v. Chavarria, No. 1:2016cv00067 - Document 33 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS That the Court Dismiss the Case for Plaintiff's Failure to Prosecute and Failure to Comply With Court Orders, signed by Magistrate Judge Jeremy D. Peterson on 7/17/18. Objections to F&R Due Within Fourteen Days (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS ALVAREZ, 12 Plaintiff, 13 v. Case No. 1:16-cv-00067-LJO-JDP 14 15 ALEX CHAVARRIA, Defendant. FINDINGS AND RECOMMENDATIONS THAT THE COURT DISMISS THE CASE FOR PLAINTIFF’S FAILURE TO PROSECUTE AND FAILURE TO COMPLY WITH COURT ORDERS 16 17 Plaintiff Juan Carlos Alvarez is proceeding pro se in this civil rights action brought under 18 42 U.S.C. § 1983. On September 12, 2017, defendant Alex Chavarria filed a motion to dismiss 19 (Doc. No. 20.), but plaintiff did not respond within the deadline. On October 19, 2017, the court 20 ordered plaintiff to show cause why this case should not be dismissed for his failure to prosecute. 21 (Doc. No. 23.) Plaintiff did not respond, and the court issued two more orders to show cause, 22 highlighting plaintiff’s failure to prosecute. (Doc. Nos. 29, 32.) Plaintiff still has not responded. 23 The court may dismiss a case for plaintiff’s failure to prosecute or failure to comply with a 24 court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 25 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court has duties 26 to resolve disputes expeditiously and to avoid needless burden for the parties. See 27 Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 28 1 1 In considering whether to dismiss the case for failure to prosecute, a court ordinarily 2 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 3 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 4 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 5 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 6 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they 7 are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products 8 Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 9 Here, the balance of the factors weigh in favor of dismissing the case. The public’s 10 interest in expeditious resolution of the case and the court’s need to manage its docket weigh in 11 favor of dismissal. See Pagtalunan, 291 F.3d at 642. Although delay “inherently increases the 12 risk that witnesses’ memories will fade and evidence will become stale,” this is hardly reason to 13 proceed with a case that plaintiff apparently does not wish to prosecute. Id. at 643. The 14 undersigned will recommend dismissal without prejudice. 15 Findings and Recommendations 16 The undersigned recommends that the court dismiss the case without prejudice for 17 plaintiff’s failure to prosecute and failure to comply with a court order. 18 The undersigned submits the findings and recommendations to the district judge presiding 19 over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the 20 United States District Court, Eastern District of California. Within 14 days of the service of the 21 findings and recommendations, plaintiff may file written objections to the findings and 22 recommendations with the court and serve a copy on all parties. That document must be 23 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 24 will review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). Plaintiff’s failure 25 to file objections within the specified time may result in the waiver of rights on appeal. See 26 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 27 28 2 1 2 IT IS SO ORDERED. 3 Dated: July 17, 2018 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3