(PC) Silva v. Sneed et al, No. 1:2018cv00044 - Document 17 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to dismiss case for Plaintiff's failures to prosecute, to state a claim and to comply with court orders signed by Magistrate Judge Jeremy D. Peterson on 12/12/2018. Referred to Judge Lawrence J. O'Neill; Objections to F & R's due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN J. SILVA, 12 Plaintiff, 13 v. 14 HELEN SNEED, et al., 15 Defendants. Case No. 1:18-cv-00044-DAD-JDP FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR PLAINTIFF’S FAILURES TO PROSECUTE, TO STATE A CLAIM, AND TO COMPLY WITH COURT ORDERS FOURTEEN-DAY DEADLINE 16 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 17 18 under 42 U.S.C. § 1983. On February 13, the court screened plaintiff’s original complaint, ECF 19 No. 1, and found that he failed to state a claim, ECF No. 9. The court allowed plaintiff to file a 20 first amended complaint but advised him that “an amended complaint supersedes the original 21 complaint, Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it 22 must be complete in itself without reference to the prior or superseded pleading, Local Rule 220.” 23 ECF No. 9 at 8-9. On March 3, 2018, plaintiff filed a first amended complaint1 that failed to comply with the 24 25 court’s order. ECF No. 11. Instead of restating the factual allegations of his original complaint, 26 plaintiff repeatedly referred to his prior pleading. Id. at 3, 4 (describing factual allegations as 27 28 Plaintiff subsequently filed two exhibits “to be added to the current complaint.” ECF No. 13; ECF No. 15. 1 1 1 “Same as original complaint”). Because plaintiff did not restate the facts alleged in his original 2 complaint, he again failed to state a claim upon which relief can be granted. Accordingly, on 3 October 19, 2018, the court directed plaintiff to show cause why this case should not be dismissed 4 for failure to obey a court order and failure to state a claim. ECF No. 16. The court granted 5 plaintiff leave to file an amended complaint within thirty days. Id. Thirty days have passed, and 6 plaintiff failed to respond, thereby violating the court’s order. 7 The court may dismiss a case brought by a prisoner seeking relief against a governmental 8 entity or officer or employee of a governmental entity for plaintiff’s failure to state a claim. See 9 28 U.S.C. § 1915A(a). Here, the court twice found that plaintiff failed to state a claim, ECF No. 10 11 9; ECF No. 16, so the case may be dismissed on this basis. The court may also dismiss a case for plaintiff’s failure to prosecute or failure to comply 12 with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 13 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court 14 has duties to resolve disputes expeditiously and to avoid needless burden for the parties. See 15 Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 16 In considering whether to dismiss the case for failure to prosecute, a court ordinarily 17 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 18 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 19 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 20 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 21 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they 22 are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products 23 Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 24 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 25 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California 26 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of 27 dismissal. 28 2 1 Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently 2 prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay inherently 3 increases the risk that witnesses’ memories will fade and evidence will become stale, id. at 643, 4 and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the third factor 5 weighs in favor of dismissal. 6 As for the availability of lesser sanctions, at this stage in the proceedings there is little 7 available to the court that would constitute a satisfactory lesser sanction while protecting the court 8 from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, 9 considering plaintiff’s incarceration and in forma pauperis status, and—given the stage of these 10 proceedings—the preclusion of evidence or witnesses is not available. While dismissal is a harsh 11 sanction, the court has already found that plaintiff’s complaint failed to state a claim. See ECF 12 No. 9; ECF No. 16 13 14 15 16 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 court finds that dismissal is appropriate. The court will recommend dismissal without prejudice. 17 Findings and Recommendations 18 The court recommends that the case be dismissed without prejudice for plaintiff’s failures 19 to state a claim, to prosecute, and to comply with court orders. 20 The undersigned submits these findings and recommendations to the U.S. district judge 21 presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 14 days of 22 the service of the findings and recommendations, the parties may file written objections to the 23 findings and recommendations with the court and serve a copy on all parties. The document 24 containing the objections must be captioned “Objections to Magistrate Judge’s Findings and 25 Recommendations.” The presiding district judge will then review the findings and 26 recommendations under 28 U.S.C. § 636(b)(1)(C). The parties’ failure to file objections within 27 the specified time may waive their rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 28 (9th Cir. 2014). 3 1 2 IT IS SO ORDERED. 3 Dated: 4 December 12, 2018 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 4

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