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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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9 ADAM W. COLEMAN, Case No. 1:21-cv-00825-EPG (PC) 10 Plaintiff, ORDER DISMISSING ACTION, WITHOUT 11 PREJUDICE, BECAUSE OF PLAINTIFF’S v. FAILURE TO COMPLY WITH COURT 12 ORDERS AND TO PROSECUTE THIS CASE

A. SOSA,

13 (ECF Nos. 28 & 30) Defendant. 14 15 16 Adam Coleman (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 17 in this civil rights action filed pursuant to 42 U.S.C. § 1983. The parties have consented to 18 magistrate judge jurisdiction and the case has been assigned to the undersigned “for all further 19 proceedings including trial and entry of judgment.” (ECF No. 25). 20 On November 23, 2021, the Court issued an order requiring the parties to submit 21 scheduling and discovery statements within thirty days. (ECF No. 28). On December 23, 22 2021, Defendant filed her scheduling and discovery statement. (ECF No. 29). Plaintiff did not 23 file his statement, and his deadline to do so passed. Accordingly, on February 4, 2022, the 24 Court directed Plaintiff to file his statement. (ECF No. 30). Plaintiff was warned that “[f]ailure 25 to comply with this order may result in the dismissal of this action.” (Id. at 2). 26 Plaintiff’s deadline to file his statement has once again passed and Plaintiff once again 27 failed to file his statement. 28 Accordingly, the Court will dismiss this case, without prejudice, because of Plaintiff’s 1 failure to comply with court orders and failure to prosecute this case. 2 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 3 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 4 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 5 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 6 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 7 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 8 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 9 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 10 this factor weighs in favor of dismissal. 11 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 12 determine whether the delay in a particular case interferes with docket management and the 13 public interest…. It is incumbent upon the Court to manage its docket without being subject to 14 routine noncompliance of litigants....” Id. Here, Plaintiff’s failure to file a scheduling 15 conference statement as required by the Court’s orders and to otherwise prosecute this action is 16 delaying the case and interfering with docket management. Plaintiff’s failure to file his 17 statement has delayed this Court’s ability to issue a scheduling order for over two months 18 already, and Plaintiff still has not filed his statement. And without being able to issue a 19 scheduling order, this case is stalled from progressing further with discovery and other case- 20 related deadlines. Therefore, the second factor weighs in favor of dismissal. 21 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 22 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 23 inherently increases the risk that witnesses’ memories will fade and evidence will become 24 stale,” id. at 643, and it is Plaintiff’s failure to comply with court orders and to prosecute this 25 case that is causing delay and preventing this case from progressing. Therefore, the third factor 26 weighs in favor of dismissal. 27 As for the availability of lesser sanctions, given that Plaintiff has chosen not to 28 prosecute this action and has failed to comply with the Court’s orders, despite being warned of eee I III NE III III IEEE III EIR IIE EE

1 || possible dismissal, there is little available to the Court which would constitute a satisfactory 2 || lesser sanction while protecting the Court from further unnecessary expenditure of its scarce 3 resources. Considering Plaintiffs incarceration and in forma pauperis status, it appears that 4 ||monetary sanctions are of little use. And as Plaintiff stopped prosecuting this case, excluding 5 evidence would be a meaningless sanction. Additionally, because the dismissal being 6 || considered in this case is without prejudice, the Court is stopping short of using the harshest 7 || possible sanction of dismissal with prejudice. 8 Finally, because public policy favors disposition on the merits, this factor weighs 9 || against dismissal. Id. 10 After weighing the factors, the Court finds that dismissal without prejudice is 11 || appropriate. Accordingly, IT IS ORDERED that: 12 1. This case is dismissed, without prejudice, because of Plaintiff’s failure to 13 comply with court orders and to prosecute this case; and 14 2. The Clerk of Court is directed to close this case. 15

IT IS SO ORDERED.

‘7 |! Dated: _March 16, 2022 [sf ey 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28