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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 ERIK ABELINO MARCELENO, 1:17-cv-01136-JLT-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT THIS CASE BE

13 vs. DISMISSED, WITHOUT PREJUDICE FOR

PLAINTIFF’S FAILURE TO COMPLY

14 CALIFORNIA DEPARTMENT OF WITH COURT ORDERS CORRECTIONS AND (ECF Nos. 45, 53.) 15 REHABILITATION, et al.,

OBJECTIONS, IF ANY, DUE WITHIN

16 Defendants. FOURTEEN (14) DAYS

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18 19 I. BACKGROUND 20 Erik Abelino Marceleno (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On August 23, 2017, Plaintiff 22 filed the Complaint commencing this action. (ECF No. 1.) This case now proceeds with 23 Plaintiff’s First Amended Complaint filed on July 30, 2019, against defendant Sergeant Mora for 24 use of excessive force in violation of the Eighth Amendment and related state claims for assault 25 and battery, for money damages only. (ECF No. 19.) 26 This case is scheduled for a trial confirmation hearing on October 28, 2022, at 1:30 p.m. 27 before District Judge Jennifer L. Thurston. On March 3, 2021, the court issued the Second 28 Scheduling Order which required Plaintiff to file a pretrial statement on or before July 29, 2022. 1 (ECF No. 45.) Plaintiff failed to file his pretrial statement in compliance with the Second 2 Scheduling Order. On August 4, 2022, the Court issued an order requiring Plaintiff to show 3 cause, within twenty-one days, why this case should not be dismissed for his failure to comply 4 with the Second Scheduling Order’s directive. (ECF No. 53.) The twenty-one-day deadline has 5 now expired and Plaintiff has not responded to the Court’s order to show cause. Therefore, it 6 will be recommended that this case be dismissed for Plaintiff’s failure to comply with the court’s 7 orders. 8 II. DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDERS 9 In determining whether to dismiss this action for failure to comply with the directives set 10 forth in its orders, “the Court must weigh the following factors: (1) the public’s interest in 11 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 12 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 13 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 14 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 15 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 16 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 17 action has been pending since August 23, 2017. Plaintiff’s failure to respond to the Court’s 18 orders may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court 19 cannot continue to expend its scarce resources assisting a litigant who will not prepare for his 20 own trial. Thus, both the first and second factors weigh 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 at 991). However, “delay inherently 23 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 24 is Plaintiff’s failure to file his pretrial statement that is causing delay. Therefore, the third factor 25 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 which would constitute a satisfactory lesser sanction while protecting the 28 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions in this 1 circumstance are of little use. However, inasmuch as the dismissal being considered in this case 2 is without prejudice, the Court is stopping short of issuing the harshest possible sanction of 3 dismissal with prejudice. 4 Finally, because public policy favors disposition on the merits, this factor will always 5 weigh against dismissal. Id. at 643. 6 III. CONCLUSION AND RECOMMENDATIONS 7 Accordingly, the court HEREBY RECOMMENDS that: 8 1. This case be dismissed without prejudice, based on Plaintiff's failure to obey the 9 court’s orders issued on March 3, 2021 and August 4, 2022; and 10 2. The Clerk be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 days after the date of service of these findings and recommendations, any party may file written 14 objections with the court. Such a document should be captioned “Objections to Magistrate 15 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 16 within the specified time may waive the right to appeal the District Court's order. Martinez v. 17 Ylst, 951 F.2d 1153 (9th Cir. 1991). 18

IT IS SO ORDERED.

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20 Dated: September 10, 2022 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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