(PC) Kelly v. Islam, et al., No. 1:2018cv00018 - Document 14 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS That the Court Dismiss the Case or Plaintiff's Failures to Prosecute, to State a Claim, and to Comply With Court Orders, signed by Magistrate Judge Jeremy D. Peterson on 9/19/2018: 14-Day Deadline. (Hellings, J)

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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 JAMES CARL KELLY, 12 Plaintiff, 13 14 15 v. SYED ISLAM, et al., Defendants. Case No. 1:18-cv-00018-DAD-JDP FINDINGS AND RECOMMENDATIONS THAT THE COURT DISMISS THE CASE FOR PLAINTIFF’S FAILURES TO PROSECUTE, TO STATE A CLAIM, AND TO COMPLY WITH COURT ORDERS FOURTEEN-DAY DEADLINE 16 17 18 James Carl Kelly (“plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action under 42 U.S.C. § 1983. On June 1, 2018, the court issued a screening 20 order finding that plaintiff filed his complaint after the expiration of the applicable statute of 21 limitations and that his complaint did not state a cognizable federal claim. (Doc. No. 12.) The 22 court directed plaintiff to show cause why this case should not be dismissed as untimely and 23 granted plaintiff leave to file an amended complaint within 30 days. (Id.) Plaintiff did not 24 respond. 25 On July 23, 2018, the court directed plaintiff to show cause why this case should not be 26 dismissed for failure to state a claim, failure to comply with a court order, failure to prosecute, 27 and as untimely. (Doc. No. 13.) Plaintiff again failed to respond. 28 The court may dismiss a case brought by a prisoner seeking relief against a governmental 1 1 entity or officer or employee of a governmental entity for plaintiff’s failure to state a claim. See 28 2 U.S.C. § 1915A(a). Here, the undersigned found that plaintiff failed to state a claim, (Doc. No. 12), 3 so the case may be dismissed on this basis. 4 The court may also dismiss a case for plaintiff’s failure to prosecute or failure to comply 5 with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 6 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court 7 has duties to resolve disputes expeditiously and to avoid needless burden for the parties. See 8 Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 9 In considering whether to dismiss the case for failure to prosecute, a court ordinarily 10 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 11 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 12 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 13 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 14 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they 15 are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products 16 Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 17 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 18 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California 19 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of 20 dismissal. 21 Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently 22 prejudicial to warrant dismissal. Id. at 642 (citing Yourish, 191 F.3d at 991). However, delay 23 inherently increases the risk that witnesses’ memories will fade and evidence will become stale, 24 id. at 643, and it is plaintiff's failure to prosecute this case that is causing delay. Therefore, the 25 third factor weighs in favor of dismissal. 26 As for the availability of lesser sanctions, at this stage in the proceedings there is little 27 available to the court that would constitute a satisfactory lesser sanction while protecting the court 28 from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, 2 1 considering plaintiff’s incarceration and in forma pauperis status, and—given the stage of these 2 proceedings—the preclusion of evidence or witnesses is not available. While dismissal is a harsh 3 sanction, the court has already found that plaintiff’s complaint failed to state a claim. 4 5 Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id. After weighing the factors, including the court’s need to manage its docket, the 6 7 undersigned finds that dismissal is appropriate. The undersigned recommends dismissal without 8 prejudice. 9 Findings and Recommendations 10 Accordingly, the undersigned recommends that the court dismiss the case without 11 prejudice for plaintiff’s failures to state a claim, to prosecute, and to comply with court orders. 12 The undersigned submits these findings and recommendations to the U.S. district judge 13 presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 14 days of 14 the service of the findings and recommendations, the parties may file written objections to the 15 findings and recommendations with the court and serve a copy on all parties. The document 16 containing the objections must be captioned “Objections to Magistrate Judge’s Findings and 17 Recommendations.” The presiding district judge will then review the findings and 18 recommendations under 28 U.S.C. § 636(b)(1)(C). The parties’ failure to file objections within 19 the specified time may waive their rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 20 (9th Cir. 2014). 21 22 IT IS SO ORDERED. 23 Dated: 24 September 19, 2018 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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