1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TASAWRI JAALI ELLIS, Case No. 1:22-cv-00732-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN CASE TO A DISTRICT

JUDGE

13 v.

FINDINGS AND RECOMMENDATIONS TO

14 STANISLAUS COUNTY SHERIFF DISMISS CASE WITHOUT PREJUDICE FOR

DEPARTMENT, JEFF DEIRSKE, FAILURE TO PROSECUTE AND COMPLY

15 LIZETTE YEPEZ and MICHELLE WITH COURT ORDERS1

SILVERIRA,

16 FOURTEEN-DAY OBJECTION PERIOD Defendants. 17 (Doc. No. 23) 18 19 This matter comes before the Court upon periodic review. As more fully set forth below, 20 the undersigned recommends this case be dismissed without prejudice due to Plaintiff’s failure to 21 prosecute this action and timely comply with the Court’s orders. 22 I. FACTS AND BACKGROUND 23 Plaintiff Tasawri Jaali Ellis, a county jail detainee, proceeding pro se and in forma 24 pauperis initiated this action by filing a 42 U.S.C. § 1983 civil rights complaint on June 16, 2022. 25 (Doc. No. 1, “Complaint’). The Complaint alleges a construed First Amendment access of court 26

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 28 1 claim, although it references the Sixth and Fourteenth Amendments. (Doc. No. 1 at 1-3). The 2 Complaint is brief and provides only a few sentences in support of the claim. (Doc. No. 1 at 1-3). 3 On July 5, 2022, the undersigned issued a screening order under 28 U.S.C. 1915A, finding 4 the Complaint failed to state a First Amendment access to court claim, or any other claim. (Doc. 5 No. 5 at 3-5). The undersigned found the Complaint was devoid of any facts alleging a causal 6 connection with any named defendant, included only conclusory allegations, and identified at 7 least one defendant who was not sui juris. (Id.). Having found the Complaint deficient and 8 subject to dismissal, the undersigned afforded Plaintiff three options: (1) file a first amended 9 complaint, (2) file a notice that he intended to stand on his initial complaint subject to the 10 undersigned recommending the district court dismiss the initial complaint, or (3) file a notice of 11 voluntary dismissal. (Id. at 5-6). Plaintiff was given a twenty-one (21) day deadline to elect one 12 of the three options. Plaintiff was further warned that the failure to timely respond to the Court’s 13 screening order, or seek an extension of time do so, would result in the recommendation that this 14 case be dismissed for failure to prosecute and/or comply with a Court order. (Id. at 7). The 15 deadline has passed2 and Plaintiff has not elected any of the three options or otherwise moved for 16 an extension of time. (See generally docket). 17 II. APPLICABLE LAW 18 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 19 when a litigant fails to prosecute an action or fails to comply with a court order. See Fed. R. Civ. 20 P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations 21 omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 22 (“[T]he consensus among our sister circuits, with which we agree, is that courts may dismiss 23 under Rule 41(b) sua sponte, at least under certain circumstances.”). Local Rule 110 similarly 24 permits the court to impose sanctions on a party who fails to comply with any order of the court. 25 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 26 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 27 2 The Court afforded Plaintiff ten (10) mailing days to provide for receipt of the order and for Plaintiff to mail his 28 response to the screening order. 1 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 2 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 3 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 4 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 5 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 6 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 7 five factors and independently reviewing the record because district court did not make finding as 8 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 9 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 10 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 11 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 12 reiterating that an explicit finding of each factor is not required by the district court). 13 III. ANALYSIS 14 The undersigned considers each of the above-stated factors and concludes dismissing this 15 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 16 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 17 Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 18 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 19 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 20 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 21 Emergency in the Eastern District of California. The Court’s time is better spent on its other 22 matters rather than needlessly consumed managing a case with a recalcitrant litigant. Indeed, 23 “trial courts do not have time to waste on multiple failures by aspiring litigants to follow the rules 24 and requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in 25 affirmance of district court’s involuntary dismissal with prejudice of habeas petition where 26 petitioner failed to timely respond to court order and noting “the weight of the docket-managing 27 factor depends upon the size and load of the docket, and those in the best position to know what 28 that is are our beleaguered trial judges.”). Delays have the inevitable and inherent risk that 1 | evidence will become stale or witnesses' memories will fade or be unavailable and can prejudice a 2 | defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). 3 Finally, the instant dismissal is a dismissal without prejudice, which is a lesser sanction 4 | than a dismissal with prejudice, thereby addressing the fifth factor. Considering these factors and 5 | those set forth supra, as well as binding case law, the undersigned recommends dismissal, without 6 || prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 7 Accordingly, it is ORDERED: 8 The Clerk of Court shall assign this case to a district court judge. 9 It is further RECOMMENDED: 10 This case be dismissed without prejudice for Plaintiff's failure to prosecute this action 11 | after being directed to file an amended complaint. 12 NOTICE TO PARTIES 13 These findings and recommendations will be submitted to the United States district judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 15 | days after being served with these findings and recommendations, a party may file written 16 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 | Findings and Recommendations.” Parties are advised that failure to file objections within the 18 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 19 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 Dated: _ August 5, 2022 oe Zh. Sareh Back 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE

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