1

2

3

4

5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY DAVID RAY ROBERTSON, Case No. 1:23-cv-00912-NODJ-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING THAT THIS ACTION BE

13 v. DISMISSED WITHOUT PREJUDICE FOR

FAILURE TO COMPLY WITH COURT

14

CALIFORNIA DEPARTMENT OF ORDERS AND PROSECUTE

15 STATE HOSPITALS-SACRAMENTO, et al., (ECF No. 30) 16 Defendants. 17

18 Randy David Ray Robertson (“Plaintiff”), who at the time of filing the complaint was 19 civilly committed to the Atascadero State Hospital (“ASH”)1, proceeds pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 21 On October 20, 2023, Defendants filed a motion to dismiss. (ECF No. 20). Defendants 22 served the motion to dismiss on Plaintiff at Contra Costa CONREP, where Plaintiff is now 23 housed. (ECF No. 20-1, p. 28; ECF No. 19). Defendants argue that the Eleventh Amendment bars 24 Plaintiff’s claims against the Department of State Hospitals and Defendants Price and Montfort 25

26 1 Plaintiff’s complaint states that he is “currently confined and being treated at DSH-Atascadero” pursuant to California Penal Code Section 1026.” (ECF No. 1, pp. 2-3). California Penal Code § 1026 provides for 27 the civil commitment of individuals who have been found not guilty by reason of insanity to the State Department of State Hospitals. Cal. Penal Code § 1026(a). On October 13, 2023, Plaintiff filed a notice of 28 change of address. (ECF No. 19). 1 acting in their official capacity. (ECF No. 20-1, pp. 12-15). Defendants also argue that Plaintiff 2 fails to state a claim under Section 1983 for deliberate indifference or any other violation of a 3 civil and that Defendants are otherwise entitled to qualified immunity. (Id., pp. 15-20). Finally, 4 Defendants argue that Plaintiff’s state law claims are time-barred. (Id., pp. 20-23). Plaintiff was required to file an opposition or statement of non-opposition to the motion 5 by November 13, 2023, (see ECF No. 24), but failed to do so. On November 27, 2023, the Court 6 ordered Plaintiff to file an opposition or statement of non-opposition within twenty-one days. 7 (ECF No. 30). The Court warned Plaintiff that if he failed to respond to Defendants’ motion, “the 8 Court may construe the failure to oppose the motion to dismiss as waiver of any opposition to that 9 motion, and may recommend that the motion be granted on that basis.” (Id., p. 2) (citing Wystrach 10 v. Chiachurski, 267 F.App’x 6060, 609 (9th Cir. 2008)). Alternatively, if Plaintiff failed to oppose 11 the motion or file a statement of non-opposition, “the Court may recommend that this action be 12 dismissed for failure to prosecute and failure to comply with a court order.” (Id.) 13 Plaintiff’s twenty-one day deadline has passed, and Plaintiff has once again failed to file 14 an opposition or a statement of non-opposition. Therefore, the Court will recommend that this 15 case be dismissed, without prejudice, because of Plaintiff’s failure to prosecute this case and to 16 comply with a Court order. 17 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 18 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 19 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 20 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 21 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 22 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 23 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 24 factor weighs in favor of dismissal. 25 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 26 determine whether the delay in a particular case interferes with docket management and the 27 public interest…. It is incumbent upon the Court to manage its docket without being subject to 28 1 routine noncompliance of litigants....” Id. Here, Plaintiff’s repeated failure to respond to 2 Defendants’ motion to dismiss, despite being ordered to do so by the Court, is consuming the 3 Court’s limited time. This failure is delaying this case and interfering with docket management. 4 Therefore, the second factor weighs in favor of dismissal. Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 5 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 6 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 7 id. at 643, and it is Plaintiff’s failure to respond to Defendants’ motion to dismiss that is causing 8 delay. Therefore, the third factor weighs in favor of dismissal. 9 As for the availability of lesser sanctions, given that Plaintiff has stopped prosecuting this 10 case, despite being warned of possible dismissal, there is little available to the Court that would 11 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 12 expenditure of its scarce resources. Considering Plaintiff’s in forma pauperis application, it 13 appears that monetary sanctions are of little use. And as Plaintiff has stopped prosecuting this 14 case, excluding evidence would be a meaningless sanction. Additionally, because the dismissal 15 being considered in this case is without prejudice, the Court is stopping short of using the harshest 16 possible sanction of dismissal with prejudice. 17 Finally, because public policy favors disposition on the merits, this factor weighs against 18 dismissal. Id. 19 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 20 Accordingly, the Court HEREBY RECOMMENDS that: 21 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to comply with a 22 court order and prosecute this case; and 23 2. The Clerk of Court be directed to close this case. These findings and recommendations will be submitted to the United States district judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 25 (14) days after being served with these findings and recommendations, Plaintiff may file written 26 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 28 1 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 ITIS SO ORDERED.

5| Dated: _ January 7, 2024 pee hy — 6 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28