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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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9 CORBIN JAMES KENNEDY, Case No. 1:20-cv-00536-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE FRESNO COUNTY SHERIFF, et al., TO COMPLY WITH A COURT ORDER 13 AND TO PROSECUTE THIS CASE Defendants. 14 (ECF No. 7)

15 OBJECTIONS, IF ANY, DUE WITHIN

FOURTEEN DAYS

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ORDER DIRECTING CLERK TO ASSIGN

17 DISTRICT JUDGE 18 Corbin James Kennedy (“Plaintiff”) is a prisoner1 proceeding pro se and in forma 19 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On June 17, 2020, the Court screened Plaintiff’s complaint and found that it failed to 21 state any cognizable claims. (ECF No. 7). The Court gave Plaintiff thirty days from the date of 22 service of the order to either: “a. File a First Amended Complaint, which the Court will screen 23 in due course; or b. Notify the Court in writing that he wants to stand on his complaint, in 24 which case the Court will issue findings and recommendations to a district judge consistent 25 with this order.” (Id. at 8). Plaintiff was warned that “[f]ailure to comply with this order may 26 result in the dismissal of this action.” (Id.). 27

28 1 It appears that Plaintiff was a pretrial detainee at the time of the incidents alleged in the complaint. 1 On September 17, 2020, the Court granted Plaintiff’s second motion for an extension of 2 time to respond to the screening order, giving Plaintiff until December 13, 2020, to respond. 3 (ECF No. 13). This deadline has passed, and Plaintiff has not filed an amended complaint or 4 otherwise responded to the Court’s order. Accordingly, the Court will recommend that this 5 case be dismissed, without prejudice, for failure to comply with a court order and failure to 6 prosecute. 7 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 8 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 9 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 10 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 11 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 12 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 13 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 14 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 15 this factor weighs in favor of dismissal. 16 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 17 determine whether the delay in a particular case interferes with docket management and the 18 public interest…. It is incumbent upon the Court to manage its docket without being subject to 19 routine noncompliance of litigants....” Id. Plaintiff has failed to respond to the Court’s 20 screening order. This failure to respond is delaying the case and interfering with docket 21 management. Therefore, the second factor weighs in favor of dismissal. 22 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 23 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 24 inherently increases the risk that witnesses’ memories will fade and evidence will become 25 stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this 26 case that is causing delay. Therefore, the third factor weighs in favor of dismissal. 27 As for the availability of lesser sanctions, at this stage in the proceedings there is little 28 available to the Court which would constitute a satisfactory lesser sanction while protecting the 1 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s 2 incarceration and in forma pauperis status, it appears that monetary sanctions are of little use. 3 And, given the stage of these proceedings, the preclusion of evidence or witnesses is not 4 available. Additionally, because the dismissal being considered in this case is without 5 prejudice, the Court is stopping short of using the harshest possible sanction of dismissal with 6 prejudice. 7 Finally, because public policy favors disposition on the merits, this factor weighs 8 against dismissal. Id. 9 After weighing the factors, the Court finds that dismissal without prejudice is 10 appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 11 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 12 comply with a court order and to prosecute this case; and 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations will be submitted to the United States district 15 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 16 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 17 file written objections with the Court.2 The document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 (9th Cir. 1991)). 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26

27 2 If, instead of or in addition to objecting, Plaintiff responds to the screening order and adequately 28 explains why he failed to timely respond to the screening order, the Court will vacate these findings and recommendations. een eee nnn I SED OIE OR

1 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 2 || Judge to this case. 3

IT IS SO ORDERED.

Dated: _ January 8, 2021 hey 6 UNITED STATES MAGISTRATE JUDGE 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28